Snowball v Singh (No 3)

Case [2024] FedCFamC2G 589

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Snowball v Singh (No 3) [2024] FedCFamC2G 589

File number(s): MLG 1844 of 2023
Judgment of: JUDGE FORBES
Date of judgment: 1 July 2024
Catchwords: BANKRUPTCY – costs – application for lump sum costs order – where creditor entitled to costs - exercise of court’s discretion - lump sum costs order made   
Legislation:

Bankruptcy Act 1966 (Cth) s 32

Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) r 13.01

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.05

Federal Court Rules 2011 r 40

Cases cited:

Doyle v Lewis (No.2) [2023] FedCFamC2G 488

Harrison v Schipp [2002] NSWCA [22].

Lowbeer v De Varda and Lowbeer v Tov-lev [2017] FCCA 1658

Snowball v Singh (No. 1) [2024] FedCFamC2G 415

Snowball v Singh (No. 2) [2024] FedCFamC2G 415

Timbercorp Finance Pty Ltd (In Liq) v Gulabovski (No. 2) [2013] FedCFamC26 69
Division: Division 2 General Federal Law
Number of paragraphs: 22
Date of last submission/s: 18 June 2024
Date of hearing: On the papers
Place: Melbourne
Counsel for the Applicant: Mr Boadle
Solicitor for the Applicant: Sanicki Lawyers
Solicitor for the Respondents: Hone Legal & Conveyancing

ORDERS

MLG 1844 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

IN THE MATTER OF ASHIL ROHIT SINGH AND LOUISE NATALIE SINGH, BANKRUPTS
BETWEEN:

THOMAS ERICK SNOWBALL

Applicant
AND:

ASHIL ROHIT SINGH

First Respondent

LOUISE NATALIE SINGH

Second Respondent

ORDER MADE BY:

JUDGE FORBES

DATE OF ORDER:

9 MAY 2024

THE COURT ORDERS THAT:

1.The Respondents pay the Applicant Creditor’s costs of and incidental to the application for review fixed in the sum of $18,129.10.

2.That the Applicant Creditor’s costs be paid from the estates of the bankrupt Respondents in accordance with the Bankruptcy Act 1966 (Cth).

3.That the Applicant Creditor serve a copy of these orders upon the Respondents.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE FORBES

INTRODUCTION

  1. On 9 May 2024, the Court dismissed the bankrupt respondents’ application, affirmed the orders made by Judicial Registrar Ellis on 29 February 2024 and ordered that any application by the applicant creditor for his costs of the review application be made by written submissions. On that date, the Court published its reasons for those orders. The Court also separately published reasons explaining why an adjournment application by the bankrupt respondents was dismissed.

  2. The applicant creditor has applied for his costs of the review application to be fixed in the sum of $18,129.10 and be paid from the…

Continue reading Snowball v Singh (No 3)

Sign in free to access the full text

Details
AGLC
Snowball v Singh (No 3) [2024] FedCFamC2G 589
Case
[2024] FedCFamC2G 589
Decision Date

CaseChat Overview and Summary

The case of Snowball v Singh (No 3) involved the applicant, a creditor, seeking a lump sum costs order from the respondents, who were the bankrupts. The application was made after the respondents had unsuccessfully applied for a review of a sequestration order made against their estates. The creditor contended that the respondents' failure to comply with the court's directions, their unsuccessful adjournment application, and the court's previous indication that the respondents should pay costs, justified the award of costs in the creditor's favour. The court was required to exercise its discretion under section 32 of the Bankruptcy Act 1966 (Cth) and rule 13.01 of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) to determine whether the creditor was entitled to costs and, if so, the appropriate amount.

The court considered the circumstances of the case, including the respondents' failure to advance the grounds for the review application, their non-compliance with the court's directions, and the unsuccessful adjournment application. The court also noted that the respondents did not file a reply submission despite being given the opportunity to do so. Based on these factors, the court found that the creditor was entitled to costs and exercised its discretion to order that the respondents pay the creditor's costs in the amount of $18,129.10. The court considered the amount to be appropriate given the circumstances of the case and the fact that the respondents had wasted time and resources on the unsuccessful review application.

In light of the court's determination that the creditor was entitled to costs and the amount to be paid, the final orders of the court were that the respondents were to pay the creditor's costs in the amount of $18,129.10, to be paid from the estates of the bankrupt respondents. The court's decision provides guidance on the exercise of its discretion in awarding costs in bankruptcy proceedings and the factors that may be taken into account in determining the appropriate amount of costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow, I have determined that it is appropriate for the applicant’s costs to be fixed in the sum of $18,129.10, with such costs to be paid from the estates of the bankrupt respondents.BACKGROUND These reasons assume familiarity with the reasons I gave for the orders made in Snowball v Singh (No.1) [2024] FedCFamC2G 415 (Snowball No. 1) and Snowball v Singh (No.2) [2024] FedCFamC2G 415 (Snowball No.2). Briefly, on 29 February 2024 Judicial Registrar Ellis made a sequestration order against the estates of the bankrupts. The respondents filed an application for review of the Judicial Registrar’s orders and that application was heard by me on 24 April 2024. On the day of the review application, the respondents made an unsuccessful application for an adjournment of the proceeding. The substantive application for review was then heard de novo and I subsequently determined that the orders made by the Judicial Registrar should be affirmed. In accordance with orders made by the Court in (Snowball No. 2), the applicant creditor filed a written submission dated 23 May 2024 in support of his application for costs. Despite being afforded the opportunity to do so, the bankrupt respondents who were unsuccessful in the review application did not file a reply submission. The applicant creditor contends that he succeeded in having the bankrupt respondents’ application dismissed in the following circumstances:(a)despite it being the bankrupt respondent’s application, the respondents did not advance the grounds on which the review was sought, they failed to comply with the Court’s directions and failed to respond to correspondence from the applicant creditor’s solicitors[1];(b)the bankrupt respondents wasted time and resources on an unsuccessful adjournment application which was only foreshadowed shortly prior to the hearing[2]; and(c)the Court found that the bankrupt respondents should pay the applicants creditor’s costs of the review application “unless persuaded otherwise”[3]. [1] Snowball v Singh (No. 2) at [4]; [6]; [22] – [23][2] Snowball v Singh (No. 1) at [7] – [8]; [24][3] Snowball No. 2 at [52]APPROACH TO COSTS IN BANKRUPTCY PROCEEDINGS The Court has a broad discretion to award costs to the successful party in a proceeding. Relevantly, section 32 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) provides that the Court may make such orders as to costs “as it thinks fit” in any proceeding before it. Further, in relation to bankruptcy proceedings in this Court, the entitlement to costs is governed by rr 13.01 and 13.02 of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) (Bankruptcy Rules). Pursuant to r 13.01 of the Bankruptcy Rules, subject to Division 13.2 and unless the Court otherwise orders, a person who is entitled to costs in a proceeding in which the Bankruptcy Act applies is entitled to costs according to Part 40 of the Federal Court Rules 2011 (Cth). The award of such costs is in the discretion of Division 2 of this Court and when making an order for costs the Court may fix the amount.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.