SABA v AHMAD
[2010] FMCA 880
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SABA v AHMAD | [2010] FMCA 880 |
| BANKRUPTCY – COSTS – Where petition dismissed by consent – where debtor instigated four adjournments prior to orders. |
| Applicant: | TERESE SABA |
| Respondent: | MASAHUD AHMAD |
| File Number: | SYG 1656 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 9 November 2010 |
| Date of Last Submission: | 9 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 9 November 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Inner West Legal |
| Solicitors for the Respondent: | Bryan Gorman & Co |
ORDERS
Application dismissed.
Respondent to pay the applicant’s costs assessed in the sum of $2.200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1656 of 2010
| TERESE SABA |
Applicant
And
| MASAHUD AHMAD |
Respondent
REASONS FOR JUDGMENT
In this matter a petition was issued against the alleged debtor on 29 July 2010. It first came before the court on 26 August 2010 when the matter was adjourned at the request of the respondent, the respondent having advised the applicant that he disputed the existence of the debt and proper service of the originating proceedings in the District Court from which a default judgment was obtained. The matter was again before the court on 16 September when it was further adjourned at the request of the respondent and once again on 21 September 2010 and finally on 28 September 2010 when the matter was before me and was adjourned until today 9 November, so that an application to set aside the judgment in the District Court could proceed.
I am told today that by consent the District Court judgment has been set aside. The applicant now asks for costs on the basis that all the adjournments in the matter were brought about at the request of the respondent and the respondent took far longer than he should to arrange for the District Court application that was necessary.
The applicant seeks all its costs under the scale in relation to the filing of the creditor’s petition and of the various adjournments including the costs of today. I have some difficulty with that request given that the petition is now being dismissed. However, I do think that as the applicant was required to come to court on at least four occasions as a result of the actions of the respondent that some recompense should be made.
The scale of fees in bankruptcy for these matters under Schedule 2 of the Federal Court Rules has been provided to me by the applicant. She seeks $544.50 for the first adjourned hearing, $635.25 for the second, $385.00 for the third, $635.25 for the final adjourned hearing and $2,108.70 for today. In my view, she should be awarded the four smaller sums for 26 August, 16 September, 21 September and 28 September but I do not think she should be awarded any sum for today given that the petition is now being dismissed. Whilst I am always grateful for the attendance of legal practitioners it would have been possible to deal with this matter apart from the costs request by short minutes of order. The application is dismissed.
I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 11 November 2010
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