Thomas v Tyler (No.3)
[2005] FMCA 506
•12 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THOMAS v TYLER (No.3) | [2005] FMCA 506 |
| COSTS – Bankruptcy – reconsideration of original order where costs followed the event. |
| Thomas v Tyler [2004] FMCA 864 |
| Applicant: | GAVIN THOMAS |
| Respondent: | MICHAEL TYLER |
| File Number: | SYG1291 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 12 April 2005 |
| Date of Last Submission: | 12 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 12 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr P McEwen SC and Mr B Skinner |
| Solicitors for the Applicant: | Argyle Partnership |
| Counsel for the Respondent: | Mr R Marshall |
| Solicitors for the Respondent: | Purcell Insolvency Lawyers |
ORDERS
Costs order of 29 March 2005 vacated.
The respondent pay the applicant's costs, excluding the costs referable to the qualification and evidence of Mr Potter and the costs of the hearing on 15 November 2004.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1291 of 2004
| GAVIN THOMAS |
Applicant
And
| MICHAEL TYLER |
Respondent
REASONS FOR JUDGMENT
In my judgment in this matter I made an order for costs which followed the event. I provided the parties with an opportunity to advise me if they wished to be heard on the question of the costs and the respondent who was the unsuccessful party in the case indicated to me that he wished to argue the matter.
I have received from Mr Marshall, who appears on behalf of the respondent, some written submissions in which he refers back to the first day of the hearing when Mr Skinner, on behalf of the applicant, was facing a very serious objection to the admission of the most important piece of valuation evidence that he had. Mr Marshall reminded me that the case then had to be adjourned for half a day because of an overbooking in the court and returned the next day when Mr Skinner attempted to argue the admissibility of the valuation documents as business records. It was at this point that I decided that the argument on the admissibility of evidence was barren and that I should take the step of appointing a court expert. I gave a judgment on that decision known as Thomas v Tyler [2004] FMCA 864.
The court appointed expert did give evidence and he was cross-examined for a lengthy period of time by Mr McEwan on behalf of the applicant. He was not cross-examined for quite so long, or indeed anywhere near so long as by Mr Marshall. Mr Marshall says that those two days of hearing should be paid for by the applicant.
Decisions on costs are always in the discretion of the court but that discretion must be exercised judicially. The general rule is that costs should follow the event and courts are reluctant to open up the entire interlocutory process to decide which pieces should be paid for by whom. On the other hand, in this case I do feel that the respondent should be relieved of some of the burden of costs arising out of the valuation evidence. As I said in my judgment of 16 November I would have been disinclined to allow the evidence of Mr Potter that Mr Skinner sought first to tender and which was his most important valuation evidence. To a great extent the court appointed valuer assisted the applicant. This is not to say that the court appointed valuer did not assist the respondent and particularly the court.
There was lengthy cross-examination of Mr Knight much of which turned out to be of little benefit. But by the same token it was always open to the respondent to accept the valuation prepared by him on the fair market value basis and limit any cross-examination to those two areas in which Mr Marshall took issue.
In my view and in the exercise of my discretion to the best of my ability having heard the entire case I would propose the following order.
The order for costs made in the judgment of 29 March 2005 will be vacated and in its place the Court orders that the respondent pay the applicant's costs, excluding the costs referable to the qualification and evidence of Mr Potter and the costs of the hearing on 15 November 2004.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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