STX Pan Ocean Co Ltd v Thomson

[2012] FCA 662

FEDERAL COURT OF AUSTRALIA

STX Pan Ocean Co Ltd v Thomson [2012] FCA 662

Citation:		STX Pan Ocean Co Ltd v Thomson [2012] FCA 662
Appeal from:		Thompson v STX Pan Ocean Co Ltd [2011] FMCA 575
Parties:		STX PAN OCEAN CO LTD v DAVID JOHN THOMSON
File number:		QUD 661 of 2011
Judge:		LOGAN J
Date of judgment:		16 May 2012
Catchwords:		COSTS – award of costs on an indemnity basis – bankruptcy notice – unsuccessful defence of challenge to setting aside of bankruptcy notice – whether federal magistrate erred in finding the offer of comprise was extended in a ‘Calderbank context’ and that refusal of appellant to accept offer was a sufficient foundation for awarding indemnity costs – no necessary consequence that refusal of offer of compromise results in award of indemnity costs – awarding of costs on indemnity basis by federal magistrate not an unreasonable exercise of discretion – appeal dismissed
Legislation:		Bankruptcy Act 1966 (Cth) s 41 Bankruptcy Regulations 1996 (Cth) reg 4.04
Cases cited:		The Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33 cited Calderbank v Calderbank [1975] 3 All ER 333 referred to Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 considered Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71 cited Parianos v Lymlind Pty Ltd (1999) 93 FCR 191 cited Tati v Stonewall Hotel Proprietary Limited (No 2) [2012] NSWCA 124 followed Thompson v Stx Pan Ocean & Co Ltd [2011] FMCA 575 referred to Thompson v Stx Pan Ocean Co Ltd (No 2) [2011] FMCA 947 referred to
Date of hearing:	16 May 2012
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	16
Counsel for the Appellant:	Mr P King
Solicitor for the Appellant:	Holman Fenwick Willan
Counsel for the Respondent:	Mr L Jurth
Solicitor for the Respondent:	Worcestor & Co

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 661 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	STX PAN OCEAN CO LTD Appellant
AND:	DAVID JOHN THOMSON Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	16 MAY 2012
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the respondent’s costs of and incidental to the appeal, to be taxed, if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 661 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	STX PAN OCEAN CO LTD Appellant
AND:	DAVID JOHN THOMSON Respondent

JUDGE:	LOGAN J
DATE:	16 MAY 2012
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The grounds of appeal are these: 

   1.The Federal Magistrates Court erred in finding that the alleged offer of compromise was “plainly extended in a Calderbank context”, and in having regard to that configuration as relevant to making an order for indemnity costs. 

   2.The Federal Magistrates Court erred in holding that a refusal…