Simmons v Giezekamp

Case [2025] FCA 584

FEDERAL COURT OF AUSTRALIA

Simmons v Giezekamp [2025] FCA 584  

File number(s): NSD 355 of 2024
Judgment of: THAWLEY J
Date of judgment: 4 June 2025
Catchwords: COSTS – where proceedings settled save as to costs – where no hearing on the merits – where respondents effectively capitulated or surrendered – where several attempts by third respondent to resolve dispute – costs awarded
Legislation:

Bankruptcy Act 1966 (Cth) ss 120, 121

Corporations Act 2001 (Cth) s 500(2)

Federal Court Act 1976 (Cth) ss 37M, 37N, 43

Conveyancing Act 1919 (NSW) s 37A
Cases cited:

Blatch v Archer (1774) 1 Cowp 63

CEG Direct Securities Pty Ltd v Cooper as liquidator of Runtong Investment and Development Pty Ltd (in liq) [2025] FCAFC 47

Chapman v Luminis [2003] FCAFC 162

GH1 Pty Ltd (in Liquidation) v Commissioner of Taxation [2017] FCA 652

Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5; 182 FCR 84

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 105

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

Simmons v Giezekamp [2024] FCA 334

Simmons v Giezekamp [2024] FCA 649

Travaglini v Raccuia [2012] FCA 620

Zhao v Ausin Group (Australia) Pty Ltd (No 2) [2023] FCA 498

Division: General Division
Registry: New South Wales
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Number of paragraphs: 70
Date of hearing: 2 June 2025
Counsel for the Applicants: Mr J Baird
Solicitor for the Applicants: Proctor Phair Lawyers
Counsel for the Third Respondent: Mr B Dibden
Solicitor for the Third Respondent: Bridges Lawyers
Table of Corrections
5 June 2025 Amended Schedule of Parties.

ORDERS

NSD 355 of 2024
BETWEEN:

JULIE ANNE SIMMONS

First Applicant

DANIEL ASHUIN SIMMONS

Second Applicant

BRUCE SAUNDERS (and others named in the Schedule)

Third Applicant
AND:

PAUL JACQUE GIEZEKAMP

First Respondent

U MONEY AUSTRALIA PTY LTD (IN LIQUIDATION)

Second Respondent

ASTRIDA GIEZEKAMP (and another named in the Schedule)

Third Respondent

ORDER MADE BY: THAWLEY J
DATE OF ORDER: 4 JUNE 2025

THE COURT ORDERS THAT:

1.The applicants pay the third respondent’s costs of the proceeding from the time the third respondent received notice of the orders made on 2 April 2024, on the ordinary basis until and including 10 March 2025, and on the indemnity basis from and including 11 March 2025.

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


REASONS FOR JUDGMENT

THAWLEY J:

  1. The general background to these proceedings may be found in Simmons v Giezekamp [2024] FCA 334 (Halley J) (Simmons 1) and Simmons v Giezekamp [2024] FCA 649 (Thawley J) (Simmons 2). The former provides the Court’s reasons delivered on 2 April 2024 for making freezing orders against Mr Paul Jacque Giezekamp and U Money Australia Pty Ltd. The latter provides the Court’s reasons delivered on 7 June 2024 for continuing those freezing orders.

  2. Relevantly for…

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Details
AGLC
Simmons v Giezekamp [2025] FCA 584
Case
[2025] FCA 584
Decision Date

CaseChat Overview and Summary

In Simmons v Giezekamp, the applicants sought a determination regarding costs after the respondents effectively capitulated or surrendered, leading to the settlement of the proceedings except for the issue of costs. The Federal Court was tasked with deciding the matter of costs between the parties. The applicants argued that the third respondent had made several attempts to resolve the dispute, which the applicants had not reciprocated. Consequently, the applicants sought an order for costs.

The court examined the circumstances under which the respondents capitulated or surrendered, and the efforts made by the third respondent to resolve the dispute. It was noted that the third respondent had actively sought resolution, while the applicants had not engaged in similar efforts. The court considered these factors in determining the appropriate costs order. The applicants' lack of reciprocity in resolution efforts and their failure to contribute to a settlement of the dispute were critical in the court's reasoning.

The court held that the applicants should bear the costs of the proceeding from the time the third respondent received notice of the orders made on 2 April 2024, on the ordinary basis until and including 10 March 2025, and on the indemnity basis from and including 11 March 2025. This decision was based on the respondents' effective capitulation or surrender and the applicants' failure to engage in resolution efforts.

The court's final orders required the applicants to pay the third respondent’s costs of the proceeding from the specified date, following the outlined basis for costs. This order was entered in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The applicants pay the third respondent’s costs of the proceeding from the time the third respondent received notice of the orders made on 2 April 2024, on the ordinary basis until and including 10 March 2025, and on the indemnity basis from and including 11 March 2025.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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