Rodrigues v customOz Services Pty Ltd - [2023] FedCFamC2G 444

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rodrigues v customOz Services Pty Ltd [2023] FedCFamC2G 444

File number(s): SYG 70 of 2023

Judgment of: JUDGE LAING

Date of judgment: 30 May 2023

Catchwords: COSTS – application to set aside bankruptcy notice – where proceedings challenging the adjudication underlying the judgment debt were unsuccessful – where the applicants’ debt to the respondent was consequently paid prior to determination of the set aside application – where the parties agreed that the set aside application should be dismissed – costs ordered in favour of the respondent

Legislation:
Bankruptcy Act 1966 (Cth) ss 32, 41

Building and Construction Industry Security of Payment Act 1999 (NSW) s 25

Civil Procedure Act 2005 (NSW) s 133

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190

Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

Federal Court Rules 2011 (Cth)

Cases cited:
Cavanah & Anor v Advance Earthmoving & Haulage Pty Ltd [2008] FMCA 427

Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622

Zhao v Suzhou Haishun Investment Management Co Ltd [2020] VSCA 34

Division: Division 2 General Federal Law

Number of paragraphs: 24

Date of last submission/s: 5 May 2023

Date of hearing: Determined without oral hearing

Place: Sydney

Counsel for the Applicants: Mr T Bland

Solicitor for the Applicants: O’Brien Lawyers

Counsel for the Respondent: Ms B K Nolan

Solicitor for the Respondent: Beyond Property Legal Solutions
ORDERS

SYG 70 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FRANK SYDNEY RODRIGUES

First Applicant

JANINA DOROTHY RODRIGUES

Second Applicant

AND:
CUSTOMOZ SERVICES PTY LTD

Respondent

order made by:

JUDGE LAING

DATE OF ORDER:

30 May 2023

THE COURT ORDERS THAT:
1.These proceedings be finalised on the basis that the applicants pay the respondent’s costs fixed in the amount of $13,000.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:

On 21 April 2023 I made orders dismissing by consent an application filed on 12 January 2023 seeking to set aside a bankruptcy notice (Bankruptcy Notice). The parties have sought for the issue of costs to be determined on the papers, following the filing of written submissions.
BACKGROUND
The Bankruptcy Notice was issued in consequence of the applicants’ non-satisfaction of a judgment entered in the Local Court of New South Wales on 28 November 2022 (Judgment). This was entered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rodrigues v customOz Services Pty Ltd

Details

AGLC: Rodrigues v customOz Services Pty Ltd [2023] FedCFamC2G 444
Case: [2023] FedCFamC2G 444
Decision Date

CaseChat Overview and Summary

The matter in Rodrigues v customOz Services Pty Ltd involved an application by the applicants to set aside a Bankruptcy Notice served by the respondent, which arose from a judgment debt in the Local Court of New South Wales. The judgment was rendered under the Building and Construction Industry Security of Payment Act 1999 (NSW), following an adjudicator's decision. The Bankruptcy Notice was served on the applicants on 22 December 2022. The applicants sought to set aside the Bankruptcy Notice on various grounds, including that the judgment was interim, illegal, beyond jurisdiction, irregular, or based on non-compliance with the Security of Payment Act. The applicants had previously sought to set aside the judgment in the Supreme Court of New South Wales, but those proceedings were dismissed, and a supplementary order was made releasing the debt amount to the respondent.

The legal issues before the court included whether the Bankruptcy Notice could be set aside due to the alleged defects in the underlying judgment and whether the dismissal of the Supreme Court proceedings and the subsequent supplementary order releasing the debt amount to the respondent affected the ability to set aside the Bankruptcy Notice. The court had to consider the principles governing the setting aside of Bankruptcy Notices, the effect of the supplementary order, and the appropriate costs order given the circumstances of the case. The court noted that the applicants had not objected to the supplementary order and that the judgment debt had been paid, leading to a consent dismissal of the application to set aside the Bankruptcy Notice.

The court determined that the applicants' application to set aside the Bankruptcy Notice was effectively moot, given the payment of the judgment debt and the dismissal of the application. The court proceeded to consider the issue of costs, applying Rule 13.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) and Rule 40.03 of the Federal Court Rules 2011 (Cth). The court found that costs followed the event, meaning that the applicants were liable for the respondent's costs of the application. The court concluded that given the circumstances, the appropriate costs order was for the applicants to pay the respondent's costs of the application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Bankruptcy Notice was issued in consequence of the applicants’ non-satisfaction of a judgment entered in the Local Court of New South Wales on 28 November 2022 (Judgment). This was entered pursuant to s 133 of the Civil Procedure Act 2005 (NSW) giving effect to the decision of an adjudicator (Adjudication) under s 25(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA). The Bankruptcy Notice was served on the applicants on 22 December 2022. On 12 January 2023, the applicants commenced the current proceedings seeking to set aside the Bankruptcy Notice. The applicants contended that the Judgment upon which the Bankruptcy Notice was based was interim in nature and liable to be set aside on the basis that it was illegal, beyond jurisdiction, irregular and/or based upon non-compliance with the provisions of the SOPA. Reliance was placed by the applicants upon proceedings that, at the time, had been commenced in the Moss Vale Local Court seeking to set aside the Judgment. Those proceedings were subsequently discontinued. The applicants then commenced proceedings in the Supreme Court of New South Wales seeking a declaration that the Adjudication was void. The applicants sought leave to amend their application in these proceedings to rely upon the Supreme Court proceedings. However, on 17 April 2023, those proceedings were dismissed with costs. On 21 April 2023, the matter was listed for directions before the Court. This was after the matter had been allocated to a Judge of this Court, following multiple previous listings before Registrars. At the listing on 21 April 2023, I was informed that a supplementary order had been made in the Supreme Court proceedings releasing the amount of the debt to the respondent. This order was made after the applicants had informed the Court that they did not object to such an order being made. The situation, then, by the time that the matter came before me was that the Judgment debt that was the subject of the Bankruptcy Notice had been paid. The parties therefore sought, by consent, dismissal of the application seeking to set aside the Bankruptcy Notice. This leaves outstanding only the issue of costs. PRINCIPLES Rule 13.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) provides:13.01 Basis for costs(1)Subject to Division 13.2, a person who is entitled to costs in a proceeding to which the Bankruptcy Act applies is entitled to costs in accordance with Part 40 of the Federal Court Rules 2011 unless the Court otherwise orders.(2) In making an order for costs, the Court may fix the amount of the costs.(3)If the Court fixes the amount of the costs, Part 40 of the Federal Court Rules 2011 does not apply to a bill of costs submitted for the costs, except for the issue of a certificate of taxation. Rule 40.03 of the Federal Court Rules 2011 (Cth) provides that if the Court reserves the question of costs, and no further order is made, costs follow the event. This reflects the general position in civil proceedings, which is that costs usually follow the event.

Ratio Decidendi

Legal Principle Established

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File number(s):	SYG 70 of 2023
Judgment of:	JUDGE LAING
Date of judgment:	30 May 2023
Catchwords:	COSTS – application to set aside bankruptcy notice – where proceedings challenging the adjudication underlying the judgment debt were unsuccessful – where the applicants’ debt to the respondent was consequently paid prior to determination of the set aside application – where the parties agreed that the set aside application should be dismissed – costs ordered in favour of the respondent
Legislation:	Bankruptcy Act 1966 (Cth) ss 32, 41 Building and Construction Industry Security of Payment Act 1999 (NSW) s 25 Civil Procedure Act 2005 (NSW) s 133 Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190 Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Federal Court Rules 2011 (Cth)
Cases cited:	Cavanah & Anor v Advance Earthmoving & Haulage Pty Ltd [2008] FMCA 427 Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Zhao v Suzhou Haishun Investment Management Co Ltd [2020] VSCA 34
Division:	Division 2 General Federal Law
Number of paragraphs:	24
Date of last submission/s:	5 May 2023
Date of hearing:	Determined without oral hearing
Place:	Sydney
Counsel for the Applicants:	Mr T Bland
Solicitor for the Applicants:	O’Brien Lawyers
Counsel for the Respondent:	Ms B K Nolan
Solicitor for the Respondent:	Beyond Property Legal Solutions

SYG 70 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FRANK SYDNEY RODRIGUES First Applicant JANINA DOROTHY RODRIGUES Second Applicant
AND:	CUSTOMOZ SERVICES PTY LTD Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	30 May 2023