Saville v Romer

FEDERAL COURT OF AUSTRALIA

Saville v Romer  [2002] FCA 351

PAULINE MARIE SAVILLE v DIANNE LENORE ROMER
In the matter of: - OSMOND JAMES SAVILLE

N 7398 OF 2001

EMMETT J
28 MARCH 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7398 OF 2001

BETWEEN:	PAULINE MARIE SAVILLE APPLICANT
AND:	DIANNE LENORE ROMER RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	28 MARCH 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.  the petition be dismissed; 
2.  there be no order as to the costs of the petition; and

3. a certificate be issued pursuant to s 10 of the Federal Proceedings (Costs) Act 1981 (Cth) in favour of each party in respect of all costs incurred after 22 November 2001.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7398 OF 2001

BETWEEN:	PAULINE MARIE SAVILLE APPLICANT
AND:	DIANNE LENORE ROMER RESPONDENT

JUDGE:	EMMETT J
DATE:	28 MARCH 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 31 August 2001, Pauline Marie Saville (“the Petitioner”) presented to the Court a creditor’s petition under s 244 of the Bankruptcy Act 1966 (Cth) (“the Act”). The petition related to the estate of the Petitioner’s former husband, Osmond James Saville (“the Deceased”). The respondent to the petition was Dianne Lenore Romer, the executrix of the will of the Deceased (“the Executrix”). The Petitioner claimed that the Deceased was indebted to her in the sum of $27,282.62 plus interest pursuant to orders for costs made in favour of the Petitioner by the Family Court of Australia on 24 May 1990 and 14 May 1992.

2. On 19 October 2001, the petition was set down for hearing on 22 November 2001 before Katz J.  However, on 25 October 2001, the full amount of the debt claimed, together with interest to the date of payment, was paid to the Petitioner.  Accordingly, when the petition came on for hearing before Katz J on 22 November 2001, the Petitioner indicated that she would consent to the dismissal of the petition subject to the question of the costs of the petition. 

3. His Honour heard full argument on the question of costs.  However, His Honour will now not in a position to give judgment and the parties have agreed that I decide the question of costs on the papers and on the basis of further written submissions by the parties.  I have now had the benefit of submissions on behalf of the Petitioner dated 8 and 21 March 2002 and submissions on behalf of the Executrix dated 14 March 2002. 

4. The debt owed by the Deceased to the Petitioner arose out of Family Court proceedings between them following their separation and the dissolution of their marriage.  It is unnecessary to examine all the circumstances that gave rise to those orders.  However, on 13 July 1985, after an order nisi dissolving the marriage had been pronounced on 4…