St Barbara Mines Ltd v Atkins

[2000] WASC 252

ST BARBARA MINES LTD -v- ATKINS [2000] WASC 252

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 252
Published:	17/10/2000
Case No:	CIV:2023/1999	Heard:	5 SEPTEMBER 2000
Coram:	MASTER SANDERSON	Delivered:	5/09/00
No of pages:	3	Judgment Part:	1 of 1
Result:	Defendant to pay plaintiff's costs of the application in any event
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Parties:	ST BARBARA MINES LTD (ACN 009 165 066) COLIN ROSS ATKINS
Catchwords:	Practice and procedure Costs of application Turns on its own facts
Legislation:	Nil
Case References:	Re Campbell; Ex p Official Trustee (1987) 72 ALR 251 Dare v Pulham (1982) 148 CLR 658 STP (Gas) Retail Pty Ltd v Jubilee Road Pty Ltd, unreported; FCt SCt of WA; Library No 980690; 17 September 1998 Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ST BARBARA MINES LTD -v- ATKINS [2000] WASC 252 CORAM : MASTER SANDERSON HEARD : 5 SEPTEMBER 2000 DELIVERED : 5 SEPTEMBER 2000 PUBLISHED : 17 OCTOBER 2000 FILE NO/S : CIV 2023 of 1999 BETWEEN : ST BARBARA MINES LTD (ACN 009 165 066)

Plaintiff

AND

COLIN ROSS ATKINS
Defendant

Catchwords:

Practice and procedure - Costs of application - Turns on its own facts

Legislation:

Nil

Result:

Defendant to pay plaintiff's costs of the application in any event

(Page 2)

Representation:

Counsel:

Plaintiff : Mr M H Zilko
Defendant : Mr K C Staffa

Solicitors:

Plaintiff : Minter Ellison
Defendant : Kevin Staffa

Case(s) referred to in judgment(s):

Re Campbell; Ex p Official Trustee (1987) 72 ALR 251

Case(s) also cited:

Dare v Pulham (1982) 148 CLR 658
STP (Gas) Retail Pty Ltd v Jubilee Road Pty Ltd, unreported; FCt SCt of WA; Library No 980690; 17 September 1998
Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691

(Page 3)

1 MASTER SANDERSON: This was the defendant's application for leave to enter judgment. After hearing argument I dismissed the defendant's application and delivered short oral reasons for doing so. I indicated to the parties that I could see no reason why costs should not follow the event. However, this entailed the making of a costs order against the defendant who is an undischarged bankrupt. A question arose as to whether, if such an order was made, the defendant's trustee in bankruptcy would be liable for any costs order. Neither counsel was in a position to address this question and accordingly I adjourned the question of costs to allow both parties to file written submissions Written submissions were duly filed on behalf of the plaintiff. No submissions were received on behalf of the defendant.

2 It is clear from the authorities that an order for costs made against a bankrupt defendant does not involve the trustee in bankruptcy in any liability. This clearly emerges from the decision in Re Campbell; Ex p Official Trustee (1987) 72 ALR 251. That being the case, it seems to me appropriate that I should make a costs order against the defendant.

3 The order will be that the defendant pay the costs of the application, including the reserved costs, in any event.