Telfer v Telfer - [2016] FCCA 1876

FEDERAL CIRCUIT COURT OF AUSTRALIA

TELFER v TELFER

[2016] FCCA 1876

Catchwords:

BANKRUPTCY – Costs – applicant seeking indemnity costs – whether justifying circumstances to make an indemnity costs order – costs order made on ordinary basis.

Legislation:

Bankruptcy Act 1966 (Cth), ss.5, 32, 40

Federal Circuit Court of Australia Act 1999 (Cth), s.79
Federal Circuit Court Rules 2001 (Cth), r.13.01, 13.02
Federal Court of Australia Act 1976 (Cth), s.43

Cases cited:

World Best Holdings v Sarker [2006] FMCA 1876

Re Hammant [1965] ALR 340
Re Ronald Grafton Sarina v the Council of Wollondilly [1980] FCA 66
Genovese v BGC Construction Pty Ltd (No. 2) [2007] FMCA 601
Burns v Media Options Group Pty Ltd & Ors (No. 2) [2013] FCCA 2016

Applicant:

NEIL RONALD TELFER

Respondent:

CAROLYN TELFER

File Number:

SYG 164 of 2016

Judgment of:

Judge Nicholls

Hearing date:

4 May 2016

Date of Last Submission:

12 May 2016

Delivered at:

Sydney

Delivered on:

22 July 2016

REPRESENTATION

Counsel for the Applicant:

Mr Justin O’Connor

Solicitors for the Applicant:

Barrak Lawyers

Counsel for the Respondent:

Mr A G Martin

Solicitors for the Respondent:

Whitehead Cooper Williams

ORDERS

The respondent pay the applicant’s costs in the proceedings, including the hearing of the costs matter, on an ordinary basis as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 164 of 2016

NEIL RONALD TELFER

Applicant

And

CAROLYN TELFER

Respondent

REASONS FOR JUDGMENT

Neil Ronald Telfer (“the applicant”) seeks an order pursuant to s.32 of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”), or in the alternative, s.43 of the Federal Court of Australia Act 1976 (Cth), that Carolyn Telfer (“the respondent”) pay the applicant’s costs in proceedings in this Court on an indemnity, or alternatively and primarily, an ordinary basis.
The evidence before the Court is as follows:
1)The affidavit of Benjamin Barrak, solicitor, dated 8 March 2016.
2)The affidavit of Benjamin Barrak, solicitor, dated 22 April 2016 with exhibit “BB-1”. Paragraphs [1] and [2] of this affidavit were not pressed by the applicant following objection by the respondent on the basis that they contained “without prejudice” discussions.
3)The affidavit of Denis Paul Williams, solicitor, dated 7 March 2016.
4)The applicant’s “Chronology”, used as an aide-memoire.

Background

The following facts emerge from the background to the current matter. The applicant was named executor of his deceased brother’s estate (Mr Lyall Telfer) by will dated 21 June 2010. I note also a subsequent codicil to the will. The respondent was the wife of the deceased.
The respondent opposed the grant of probate to the applicant of her husband’s will. She commenced proceedings in the New South Wales Supreme Court for a grant of probate of Mr Lyall Telfer’s will. On 24 April 2013 she succeeded, and costs were awarded to the respondent (Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Caroline Telfer [2013] NSWSC 412).
However, the applicant was successful on appeal before the Court of Appeal (

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 Telfer v Telfer

Details

AGLC: Telfer v Telfer [2016] FCCA 1876
Case: [2016] FCCA 1876
Decision Date: 22 July 2016

CaseChat Overview and Summary

In *Telfer v Telfer*, the applicant sought indemnity costs from the respondent in bankruptcy proceedings before Judge Nicholls. The core of the dispute concerned the applicant's claim for indemnity costs, necessitating the court's determination of whether justifying circumstances existed to depart from the usual order for ordinary costs.

The central legal issue before the court was whether the conduct of the respondent warranted an order for indemnity costs, as opposed to the standard order for costs on an ordinary basis. This required an assessment of the respondent's actions in the context of the bankruptcy proceedings and whether they met the threshold for exceptional circumstances that would justify a departure from the usual cost rules.

Judge Nicholls ultimately ordered costs on an ordinary basis, finding that the circumstances did not justify an award of indemnity costs. The court's reasoning focused on the established principles governing cost orders in bankruptcy matters, emphasizing that indemnity costs are an exception and require a high degree of justification, which was not demonstrated in this instance.

Orders