Simatis v Walgenup Aboriginal Corporation (No 2)

FEDERAL COURT OF AUSTRALIA

Simatis v Walgenup Aboriginal Corporation (No 2) [2023] FCA 607

File number:

WAD 271 of 2022

Judgment of:

COLVIN J

Date of judgment:

9 June 2023

Catchwords:

COSTS -  application for costs where plaintiff had no real evidence to support statutory demand issued - where plaintiff’s commencement of the proceedings and opposition to the application of the defendant for leave were unreasonable - where no settlement or supervening event - plaintiff ordered to bear the costs of the proceedings   

Cases cited:

Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622

Simatis v Walgenup Aboriginal Corporation [2023] FCA 357

Taylor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1760

Travaglini v Raccuia [2012] FCA 620

Division:

General Division

Registry:

Western Australia

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Number of paragraphs:

16

Date of hearing:

6 June 2023

Counsel for the Plaintiff:

Mr D Banda with Mr T A Coltrona

Solicitor for the Plaintiff:

Bennett

Counsel for the Defendant:

Mr PG Donovan with Ms CD Radenti

Solicitor for the Defendant:

MDS Legal

ORDERS

WAD 271 of 2022

BETWEEN:

GEORGE SIMATIS

Plaintiff

AND:

WALGENUP ABORIGINAL CORPORATION (ICN 849)

Defendant

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	9 JUNE 2023

THE COURT ORDERS THAT:

1.The plaintiff pay the costs of and incidental to the proceeding to be assessed by a registrar if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1. On 21 December 2022, Mr George Simatis applied to wind-up Walgenup Aboriginal Corporation (WAC). He relied upon the failure to comply with a statutory demand that had been served on 21 November 2022. The demand was based upon a claim that there was a debt of $307,801.61 due by WAC to Mr Simatis (Debt) which was said to have arisen under the terms of a lease between Mr Simatis as lessee and WAC as lessor (Lease). The Lease was of a property known as Pemberton Farm Chalets. Mr Simatis was the deponent to the affidavit accompanying the statutory demand (Affidavit).

2. WAC did not apply to set aside the statutory demand within the statutory time to do so. It sought leave to challenge the existence of the Debt on the hearing of the winding-up application. Its application was successful: Simatis v Walgenup Aboriginal Corporation [2023] FCA 357 (Principal Reasons). Thereafter, before the hearing of the winding-up application, Mr Simatis discontinued the application. The parties disagree as to the appropriate order as to costs consequent upon the discontinuance.

3. Where proceedings have been discontinued, there must be good reason for the discontinuing party not to be ordered to pay the costs of the proceedings: see the review of the authorities by Flick J in Taylor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA…