Talent v Official Trustee in Bankruptcy (No 3)

[2019] ACTSC 303

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Talent v Official Trustee in Bankruptcy (No 3)

Citation:

[2019] ACTSC 303

Hearing Date:

3 October 2019

Submissions Received:

8 October 2019

DecisionDate:

25 October 2019

Before:

Crowe AJ

Decision:

See [7]

Catchwords:

COSTS – CROSS-VESTING APPLICATION – Application to transfer proceedings to the Federal Court – bankruptcy – Family Provision Act claim – applicant successful – whether the respondent on the Application in Proceeding should pay the Executor’s costs – costs to follow the event

Legislation Cited:

Bankruptcy Act 1966 (Cth)

Cases Cited:

Talent v Official Trustee in Bankruptcy [2019] ACTSC 274

Parties:

John Talent (Plaintiff)

Official Trustee in Bankruptcy (First Defendant)

Nadia Talent as executor of the estate of the late Joan Talent (Second Defendant)

Representation:

Counsel

T Crispin (Plaintiff)

Z Rowling (First Defendant)

R Patrick (Second Defendant)

Solicitors

Ray Swift Moutrage and Associates (Plaintiff)

Australian Government Solicitors (First Defendant)

Gil-Jones Barker (Second Defendant)

File Number:

SC 414 of 2019

Crowe AJ

1. On 3 October 2019, I handed down my decision in relation to the
   Application in Proceeding of the Official Trustee in Bankruptcy to transfer to the
   Federal Court of Australia that part of the proceedings involving the plaintiff’s claim for relief under the Bankruptcy Act 1966 (Cth) (see Talent v Official Trustee in Bankruptcy [2019] ACTSC 274). At that time I made a costs order as between the plaintiff and the Official Trustee, however I reserved the question of costs as between the plaintiff and the Executor.

1. I gave leave to the Executor to file and serve written submissions as to costs by close of business on 8 October 2019. I gave the other parties leave to file and serve submissions by close business on 11 October 2019.

1. The Executor has, through her solicitor, filed (and I assume, served) submissions. No other party has responded.

1. The Executor argues that she was required to respond to the Official Trustee’s application because the plaintiff had inappropriately included his claim for bankruptcy relief in the Originating Application issued in this Court. It is submitted that the plaintiff failed in his resistance to the Official Trustee’s application and the costs should follow the event, as they did in relation to the Trustee.

1. As to the possibility that the costs might be ordered to be costs in the cause, the Executor says that the outcome of such an order could depend on matters quite separate to the transfer application. Such an order therefore carries the risk of operating unfairly with respect to the Executor.

1. There is force in the arguments put by the Executor. In all the circumstances it is appropriate that I make the usual order that the Executor’s costs should follow the event.

Order of the Court

1. Accordingly, the order of the Court is as follows:

(1)     The plaintiff is to pay the costs of the second defendant in relation to the Application in Proceeding filed by the Official Trustee in Bankruptcy on 23 August 2019.

I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe.

Associate:

Date: 25 October 2019