Sarina v O'Shannassy (No 3)
[2021] FCCA 1930
•20 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Sarina v O’Shannassy (No 3) [2021] FCCA 1930
File number(s): SYG 1345 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 20 August 2021 Catchwords: COSTS – application pursuant to liberty to apply to vary order for costs made on delivery of reasons for judgment – application for variation of costs order dismissed Cases cited: Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd (No 5) [2010] FCA 605
Sarina v O'Shannassy [2020] FCCA 1625
Sarina v O’Shannassy (No 2) [2021] FCCA 338
Sarina & Anor v O’Shannassy [2019] FCCA 732
Sarina & Anor v O'Shannassy (No.5) [2020] FCCA 2911
Sarina v O'Shannassy (No 6) [2020] FCCA 3422
Number of paragraphs: 9 Date of last submission/s: 23 April 2021 Date of hearing: Decided on the papers Place: Sydney Counsel for the Applicant: Mr C Bolger Solicitor for the Applicant: Kalantzis Lawyers The Respondent: In person ORDERS
SYG 1345 of 2020 BETWEEN: CLINTON SARINA
Applicant
AND: JOHN O'SHANNASSY
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
20 AUGUST 2021
THE COURT ORDERS THAT:
1.The respondent’s application to vary order 2 of the orders made on 26 February 2021 is dismissed.
2.The respondent pay the applicant’s costs of the application referred to in order 1.
REASONS FOR JUDGMENT
On 26 February 2021 I made an order dismissing an interim application filed by the respondent to amend the bankruptcy notice the respondent served on the applicant, and an order setting aside the bankruptcy notice. I also ordered that the applicant pay the respondent’s costs (Costs Order), reserving to the parties liberty to apply to set aside or vary the Costs Order.
The respondent exercised the liberty to apply, after which I made directions for the filing of written submissions. The parties filed written submissions, and they agreed that the question of costs could be determined on the papers.[1] These reasons assume familiarity with the judgment I delivered on 26 February 2021.[2]
[1] The respondent filed two sets of submissions, one dated 19 March 2021 and one dated 23 April 2021,and the applicant relied on written submissions dated 16 April 2021
[2] Sarina v O’Shannassy (No 2) [2021] FCCA 338
The principal basis on which the respondent seeks to vary the Costs Order is that the applicant succeeded on a ground (the post box ground) he first raised on about 14 July 2020 when I granted the applicant leave to amend the application to set aside the bankruptcy notice. The respondent also submits that the many occasions on which the matter was adjourned were not his fault. The respondent submits that had the applicant “made an application to dismiss the Bankruptcy Notice at first instance on the basis of the creditors address being a post office box, then the various and numerous adjournments would not have been necessary”.[3] The respondent submits I should order that each party bear his own costs up to the date of the hearing on 18 February 2021, and that the respondent pay the applicant’s costs of the hearing. The respondent also submits, however, that I should order that the costs of the hearing of 18 February 2021 be stayed “until hearing of the appeal NSD 1269/2020”.[4] That is a reference to an appeal and cross appeals from orders I made on the basis of earlier judgments.[5]
[3] [Respondent’s] Submissions as to Costs, [29]
[4] [Respondent’s] Submissions as to Costs, [4iii]
[5] Sarina & Anor v O’Shannassy [2019] FCCA 732; Sarina & Anor v O'Shannassy (No.5) [2020] FCCA 2911; and Sarina v O'Shannassy (No 6) [2020] FCCA 3422
The applicant, on the other hand, submits that, in the ordinary course, costs follow the event;[6] and that, generally, an applicant who relies on different legal rules to pursue a single outcome and who achieves that outcome should not have his or her entitlement to costs qualified by reference to the rules under which his or her case was not successful.[7] The applicant also submits the respondent has incorrectly described the procedural history of the matter. The applicant submits he has acted properly, reasonably, and appropriately in commencing this proceeding to set aside the bankruptcy notice, and in regularly applying to extend the time for compliance with the requirements of the bankruptcy notice.
[6] Applicant’s Outline of Submissions Re Application by Respondent to Vary Cost Order, at [7] referring to (among other cases) George v Fletcher (Trustee) (No 2) [2010] FCAFC 71, at [12]
[7] Applicant’s Outline of Submissions Re Application by Respondent to Vary Cost Order, at [14] referring to Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd (No 5) [2010] FCA 605, at [44]
It is the case that there were many adjournments of the proceedings that necessitated the making of orders extending time for compliance with the requirements of the bankruptcy notice; and it may be accepted that none of these adjournments was due to any fault by the respondent. But that does not necessarily mean the adjournments were due to any fault of the applicant. The question is what occasioned these adjournments. The ultimate cause was the respondent’s having served a bankruptcy notice on the applicant and the respondent resisting the applicant’s application to set aside the bankruptcy notice. The respondent’s resistance extended to opposing, on one occasion, the applicant’s application to extend the time for compliance with the requirements of the bankruptcy notice. That resulted in a substantive interlocutory hearing which, in turn, led me to deliver a judgment on 19 June 2020 (19 June Judgment).[8]
[8] Sarina v O'Shannassy [2020] FCCA 1625
There are two, more immediate, reasons that explain the regular adjournments. The first relates to the period from 19 June 2020 to 30 October 2020, when I published my judgment in the defamation proceeding that the applicant and Mr Green had commenced against the respondent (Defamation Proceeding).[9] During this period the application to set aside the bankruptcy notice was adjourned because one of the grounds on which the applicant relied for setting aside the bankruptcy notice was that the claim for damages the applicant made in the Defamation Proceeding constituted a counter-claim, set-off, or cross demand equal to or exceeding the amount of the judgment debt on the basis of which the bankruptcy notice was issued, being a counter-claim, set-off, or cross demand the applicant could not have set up in the proceeding in which the judgment was obtained. In my 19 June Judgment I found that it would be more convenient if I not determine whether the claims the applicant made in the Defamation Proceeding constituted such a counter-claim, set-off, or cross demand, independently of my determining the claims made in the Defamation proceeding.[10] That necessarily implied that I would not decide this ground for setting aside the bankruptcy notice until after I determined the claims made in the Defamation Proceeding. The second reason for adjourning the application to set aside the bankruptcy notice relates to the period after 30 October 2020, being the day on which I delivered my judgment in the Defamation Proceeding. The adjournments were occasioned, at least for the most part, by the respondent’s intention to apply to amend the bankruptcy notice.
[9] Sarina & Anor v O'Shannassy (No.5) [2020] FCCA 2911
[10] Sarina v O'Shannassy [2020] FCCA 1625, at [20]
In these circumstances I do not accept that the applicant’s seeking to amend the application in July 2020 to include the post box ground occasioned any adjournment, or otherwise caused the throwing away of any costs the respondent incurred up to the day on which I granted the applicant leave to amend his application. I am satisfied there is nothing in the material before me that could lead me to find that any costs the applicant incurred in successfully prosecuting his application to set aside the bankruptcy notice were not due to the respondent’s having resisted the applicant’s application to set aside the bankruptcy notice, and resisting, on the occasion he did, the applicant’s application to extend the time for complying with the requirements of the bankruptcy notice.
I therefore propose to dismiss the respondent’s application to vary the Costs Order, and order the respondent pay the applicant’s costs of that application.
I do not propose to make an order staying the Costs Order because the stay is not sought in aid of any appeal against any orders I made in this proceeding, but in aid of an appeal from orders I made in the Defamation proceeding. I am not satisfied I have power to order a stay in such circumstance. Even if I had power to grant a stay in aid of an appeal from orders made in a different proceeding, there is no evidence before me that could support my ordering a stay.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 20 August 2021
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