Salubre v Owners - Strata Plan 10564 (No 2)

[2014] FCA 471

FEDERAL COURT OF AUSTRALIA

Salubre v Owners – Strata Plan 10564 (No 2)

[2014] FCA 471

Citation:	Salubre v Owners – Strata Plan 10564 (No 2) [2014] FCA 471
Appeal from:	Salubre v Jones (as trustee for the bankrupt estate of Pascual) [2014] FCCA 441
Parties:	MARY ROSE SALUBRE and MYLA LONTOK PASCUAL v THE OWNERS - STRATA PLAN 10564 and MICHAEL GREGORY JONES AS TRUSTEE FOR THE BANKRUPT ESTATE OF MYLA LONTOK PASCUAL
File number:	NSD 318 of 2014
Judge:	RARES J
Date of judgment:	14 May 2014
Legislation:	Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited:	Bullock v The Federated Furnishing Trades Society of Australasia (No 2) (1985) 5 FCR 476 applied Gurnett v The Macquarie Stevedoring Company Proprietary Limited (No 2) (1956) 95 CLR 106 applied Insight SRC IP Holdings Pty Ltd v Australian Council for Educational Research Ltd (No 2) [2013] FCAFC 73 applied Salubre v The Owners – Strata Plan 10564 [2014] FCA 471 referred to
Date of hearing:	On written submissions
Date of last submissions:	24 April 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	6
Counsel for the Appellants:	Mr D Allen
Solicitor for the Appellants:	Leigh Johnson Solicitors
Solicitor for the First Respondent:	Bannermans Lawyers
Counsel for the Second Respondent:	The second respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 318 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MARY ROSE SALUBRE
First Appellant

MYLA LONTOK PASCUAL
Second Appellant

AND:

THE OWNERS - STRATA PLAN 10564
First Respondent

MICHAEL GREGORY JONES AS TRUSTEE FOR THE BANKRUPT ESTATE OF MYLA LONTOK PASCUAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	14 MAY 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The first respondent’s application for a costs certificate in respect of the appeal be dismissed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 318 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MARY ROSE SALUBRE
First Appellant

MYLA LONTOK PASCUAL
Second Appellant

AND:

THE OWNERS - STRATA PLAN 10564
First Respondent

MICHAEL GREGORY JONES AS TRUSTEE FOR THE BANKRUPT ESTATE OF MYLA LONTOK PASCUAL
Second Respondent

JUDGE:	RARES J
DATE:	14 MAY 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 16 April 2014, I granted the applicants an extension of time in which to seek leave to appeal, and allowed the appeal with costs:  Salubre v The Owners – Strata Plan 10564 [2014] FCA 470. The Owners have sought a costs certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth). Relevantly, s 6 of the Act provides:

   “6       Costs certificates for respondents – Federal appeals

   (1)Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.

   …

   (3)The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of:

   (a)the costs incurred by the respondent in relation to the appeal; and

   (b)any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates.”

2. The Owners contended that simply because the appeal succeeded on questions of law they should be granted a certificate.

3. In my opinion, there is no basis on which I would consider it appropriate to grant a certificate. Apart from losing the appeal, the Owners advanced no reason why it would be appropriate to grant them a certificate. The Court has a discretion whether to grant a certificate under s 6(3) of the Act. There is no presumption in favour of the grant of a certificate under s 6(1): Bullock v The Federated Furnishing Trades Society of Australasia (No 2) (1985) 5 FCR 476 at 477 per Smithers, Sweeney and Woodward JJ; Insight SRC IP Holdings Pty Ltd v Australian Council for Educational Research Ltd (No 2) [2013] FCAFC 73 at [16] per North, Rares and Robertson JJ.

4. Here, the Owners persuaded the trial judge to reject, on grounds that had no legal justification, the amendment application, that I held was properly made.  The Owners vigorously resisted the appellants’ attempt to correct those errors.  As I held, the Owners were a proper and necessary party to the proceedings below and there was no reason for them to have sought to be removed as a party.  The submission should not have been made to his Honour in the Court below and could not be supported in argument by the Owners when I enquired as to its legal foundation:  Bullock 5 FCR at 478-479.

5. Moreover, the Owners have put no evidence before the Court as to their financial position.  There is no reason why, just because their arguments that persuaded his Honour failed before me, their costs should be recouped out of the public purse:  Gurnett v The Macquarie Stevedoring Company Proprietary Limited (No 2) (1956) 95 CLR 106 at 113-114 per Dixon CJ.

6. The application is without merit.  I dismiss it.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:  14 May 2014