Sheahan (Trustee), in the matter of Livingstone (Bankrupt) v Livingstone

[2003] FCA 620

FEDERAL COURT OF AUSTRALIA

Sheahan (Trustee), in the matter of Livingstone (Bankrupt) v Livingstone
[2003] FCA 620

PRACTICE AND PROCEDURE – notice of motion dismissed by consent – Calderbank offer – indemnity costs

Bankruptcy Act 1966 (Cth)
Calderbank v Calderbank [1975] 3 All ER 333

IN THE MATTER OF KENNETH ROBERT LIVINGSTONE (BANKRUPT); JOHN SHEAHAN (AS TRUSTEE OF THE ESTATE OF KENNETH ROBERT LIVINGSTONE, A BANKRUPT) v PAMELA ANNE LIVINGSTONE, JENNIFER ANNE LIVINGSTONE & GRAHAM LIVINGSTONE

N 7071 OF 2002

BENNETT J
12 JUNE 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7071 OF 2002

IN THE MATTER OF:

KENNETH ROBERT LIVINGSTONE

BETWEEN:

JOHN SHEAHAN
APPLICANT

AND:

PAMELA ANNE LIVINGSTONE
FIRST RESPONDENT

JENNIFER ANNE LIVINGSTONE
SECOND RESPONDENT

GRAHAM DAVID LIVINGSTONE
THIRD RESPONDENT

JUDGE:

BENNETT J

DATE OF ORDER:

12 June 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The second and third respondents’ notice of motion dated 14 May 2003 be dismissed.

2.The second and third respondents pay the applicant’s costs of and incidental to the notice of motion, including costs thrown away by reason of the withdrawal of the notice of motion, on an indemnity basis.

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	N7071 OF 2002

IN THE MATTER OF:

KENNETH ROBERT LIVINGSTONE

BETWEEN:

JOHN SHEAHAN
APPLICANT

AND:

PAMELA ANNE LIVINGSTONE
FIRST RESPONDENT

JENNIFER ANNE LIVINGSTONE
SECOND RESPONDENT

GRAHAM DAVID LIVINGSTONE
THIRD RESPONDENT

JUDGE:

BENNETT J

DATE OF ORDER:

12 June 2003

WHERE MADE:

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. On 9 May 2003, the second and third respondents foreshadowed a desire to challenge the jurisdiction of the Court in relation to the outstanding maters in the amended statement of claim.  The second and third respondents sought some time in which to consider their position as to whether they would file a notice of motion and filed a notice of motion on 14 May seeking orders that the application filed by the applicant on 14 March be dismissed and, in the alternative, that the statement of claim be struck out.  There was nothing further in the notice of motion that revealed the bases of those applications, nor was there an affidavit filed in support.

2. The directions that I gave in regard to the hearing of the notice of motion were that the second and third respondents file and serve written submissions on or before 6 June and the applicant file and serve its submissions by 10 June.

3. In the interim, a letter dated 21 May was sent by the solicitors for the applicant to the solicitors for the second and third respondents asserting that the Court has jurisdiction to determine the whole of the controversy or matter of which an issue arising under a federal enactment claims part and setting out in some detail the basis upon which the applicant said that there was jurisdiction in the Court.  In that letter it was stated that the letter constituted an offer in accordance with the principles enunciated in Calderbank v Calderbank [1975] 3 All ER 333 and that the second and third respondents were given seven days to withdraw their notice of motion or, alternatively, consent to an order for its dismissal.

4. There was no written response to that letter nor, as I understand it, was there anything more than, perhaps, an assertion that the second and third respondents did not agree with the contents.  No further basis for the notice of motion or the claims for dismissal of the statement of claim were provided by the second and third respondents.  On 6 June, the day submissions were due, counsel for the second and third respondents notified senior counsel for the applicant that the second and third respondents did not wish to proceed with the notice of motion and advised that they would consent to an order that the notice of motion be dismissed, with an order for costs on the normal party-party basis.  This was in the context of the short time frame between the date upon which the second and third respondents were due to file their written submissions and the date upon which the applicant's submissions in answer were due.

5. The second and third respondents point to what they assert was an absence of reference in the applicant’s letter of 21 May to some of the matters that they (the respondents) would have wished to refer to on the hearing of the motion had they chosen to proceed.  Those matters were not adverted to either in correspondence or, as far as the parties can recall, in Court before me on the previous occasion.  It does not seem to me that it was reasonable in those circumstances to expect the applicant to refer in its letter to matters that may have been in the mind of counsel for the second and third respondents but had not been specified. 

6. Certainly there were general assertions in that letter that should have alerted the respondents perhaps to look more carefully at the matters raised, in order to decide whether to proceed on the motion.  Had the second and third respondents responded to the letter within the time frame or, indeed, immediately thereafter, I would not have been minded to make other than an ordinary costs order in this case.  That is exactly what the letter set out and, in the circumstances it would have been reasonable.  However, in the absence of any affidavit in support of the motion, the absence of any response on the part of the second and third respondents to the letter and the timing of the offered withdrawal, I am minded to make the order sought by the applicant, that is that the second and third respondents pay the costs on an indemnity basis.

7. The applicant has also sought an order that the costs be taxed forthwith and paid forthwith upon the issue of a certificate of taxation.  Senior counsel for the applicant said before me that the applicant would not be seeking to proceed to taxation or otherwise to pursue that order even if it were made, until a reasonable time after the hearing, in effect until the giving of judgment and reasons in the main proceedings.  The matter is set down for hearing in July, so the time frame is not extended unduly.  I will consider the application for the requested order with respect to the costs of this motion as part of the overall consideration of costs of the hearing. 

8. Accordingly, I make orders 1 and 2 in the short minutes of order that were handed up by senior counsel for the applicant.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:   14 July 2003

Counsel for the Applicant:	J Marshall SC
Solicitor for the Applicant:	Deacons
Counsel for the Respondent:	B De Buse
Solicitor for the Respondent:	W G McNally & Co
Date of Hearing:	12 June 2003
Date of Judgment:	12 June 2003