Spiliotopoulos v Jackson (No 2) - [2021] FCCA 1903

FEDERAL CIRCUIT COURT OF AUSTRALIA

SPILIOTOPOULOS v JACKSON (No 2)

[2021] FCCA 1903

Catchwords:
BANKRUPTCY – Costs – proceeding under the Bankruptcy Act 1966 (Cth) – applicable costs scale for a bankruptcy proceeding in the Federal Circuit Court.

Legislation:

Bankruptcy Act 1966 (Cth)

Federal Circuit Court of Australia Act 1999 (Cth), s.79

Federal Circuit Court (Bankruptcy) Rules 2016 (Cth), r.13.01

Federal Court Rules 2011 (Cth), r.40.12

Cases cited:

Spiliotopoulos v Jackson [2020] FCCA 870

Applicant:

ARTHUR SPILIOTOPOULOS

Respondent:

LORRAINE JACKSON

File Number:

SYG 14 of 2019

Judgment of:

Judge Cameron

Hearing date:

On the papers

Date of Last Submission:

16 July 2020

Delivered at:

Sydney

Delivered on:

18 August 2021

REPRESENTATION

Solicitor for the Applicant:

Mr T. Hall of Hall Partners

Solicitor for the Respondent:

Mr M. Isaac of Willis & Bowring

ORDERS

The applicant pay the respondent’s costs fixed in the amount of $17,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 14 of 2019

ARTHUR SPILIOTOPOULOS

Applicant

And

LORRAINE JACKSON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 4 January 2019 the applicant, Mr Spiliotopoulos, filed an application to set aside bankruptcy notice BN232143 which had been issued at the request of the respondent, Ms Jackson, and served on him on 18 December 2019. On 20 April 2020 the Court dismissed Mr Spiliotopoulos’s application with costs, ordering that if the parties could not agree on the quantum of costs the Court would determine them. The parties agreed that, if that were to happen, it would be on the papers.
The parties did not agree and have filed written submissions on the costs question.

RELEVANT LEGISLATION

Section 79 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCC Act”) empowers this Court to award costs in proceedings under, relevantly, the Bankruptcy Act 1966 (Cth). Section 79(2) of the FCC Act provides that:
…
(2)The Federal Circuit Court of Australia or a Judge has jurisdiction to award costs in all proceedings before the Federal Circuit Court of Australia (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
…
Rule 13.01 of the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) (“FCC Bankruptcy Rules”) relevantly provides:
13.01 Basis for costs
(1)Subject to Division 13.2, a person who is entitled to costs in a proceeding to which the Bankruptcy Act applies is entitled to costs in accordance with Part 40 of the Federal Court Rules 2011 unless the Court otherwise orders.
(2)In making an order for costs, the Court may fix the amount of the costs.
(3)If the Court fixes the amount of the costs, Part 40 of the Federal Court Rules 2011 does not apply to a bill of costs submitted for the costs, except for the issue of a certificate of taxation.
Division 13.2 of the FCC Bankruptcy Rules is not relevant to this proceeding.
Rule 40.12 of the Federal Court Rules 2011 (Cth), (“FCA Rules”) relevantly provides that:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Spiliotopoulos v Jackson (No 2)

Details

AGLC: Spiliotopoulos v Jackson (No 2) [2021] FCCA 1903
Case: [2021] FCCA 1903
Decision Date: 18 August 2021

CaseChat Overview and Summary

In *Spiliotopoulos v Jackson (No 2)*, the Federal Circuit Court of Australia was asked to determine the applicable costs scale for a proceeding conducted under the *Bankruptcy Act 1966* (Cth). The dispute concerned the quantum of costs to be awarded following earlier proceedings between the parties.

The central legal issue before the Court was whether the costs of the bankruptcy proceeding should be assessed according to the Federal Circuit Court's general costs scale or a specific scale applicable to bankruptcy matters. This determination was crucial for establishing the appropriate basis for calculating the costs recoverable by the successful party.

Judge Cameron reasoned that the *Bankruptcy Act 1966* and the associated Rules contemplate that bankruptcy proceedings are to be conducted in accordance with the general rules of the court in which they are filed, unless specific provisions dictate otherwise. In the absence of any specific provision within the *Bankruptcy Act* or its Rules mandating a different costs scale for proceedings in the Federal Circuit Court, the Court concluded that the general costs scale of the Federal Circuit Court applied. The Court found that the intention of the legislation was for bankruptcy proceedings to be treated as ordinary civil litigation in terms of costs, unless expressly stated to the contrary.

Orders