Emma Narelle Cathryn Thompson v Morgan Lane as Trustee of the Bankrupt Estate of Emma Narelle Cathryn Thompson & Anor (7 September 2023)
Emma Narelle Cathryn Thompson v Morgan Lane as Trustee of the Bankrupt Estate of Emma Narelle Cathryn Thompson & Anor (25 August 2023)
File numbers:
QUD 419 of 2023 QUD 420 of 2023
Judgment of:
SARAH C DERRINGTON J
Date of judgment:
17 October 2024
Catchwords:
ADMINISTRATIVE LAW – applications for judicial review of a Registrar’s assessment of quantum for lump sum costs award – where right of review lies under s 35A(5) of theFederal Court of Australia Act 1976 (Cth) – reviews conducted de novo
COSTS – where respondents’ costs in prior proceedings ordered to be paid out of applicant’s bankrupt estate – whether lump sum costs claimed by the respondents in QUD86/2022 and QUD113/2021 are fair and just
[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.
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Details
AGLC
Thompson v Ellis [2024] FCA 1200
Case
[2024] FCA 1200
Decision Date
CaseChat Overview and Summary
The case of Thompson v Ellis involves a judicial review of the Registrar's assessment of quantum for lump sum costs awards. The matter was heard in the Federal Court of Australia, where the court was tasked with determining the fairness and justice of the lump sum costs claimed by the respondents in two separate proceedings. The respondents' costs, which were ordered to be paid out of the applicant's bankrupt estate, were the primary focus of the review.
The legal issues before the court included whether the costs claimed by the respondents in the two proceedings, QUD86/2022 and QUD113/2021, were fair and just, and whether the Registrar's determinations should be set aside. The court was required to conduct a de novo review of the Registrar's assessments, as the right to review was established under section 35A(5) of the Federal Court of Australia Act 1976 (Cth). The court's role was to independently assess the fairness and justice of the costs claimed by the respondents.
In delivering the judgment, the court found that the Registrar's orders were not consistent with the directions made by the primary judges. The court set aside the Registrar's orders and fixed the costs payable to the respondents in accordance with the directions of the primary judges. The court determined that the costs payable to the first respondent were $50,262.91, and to the second respondent were $52,451.00 for one proceeding and $44,202.00 for another, as per the orders of Logan J and Goodman J respectively. This decision underscores the importance of adherence to the directions of the primary judges in the assessment of costs in bankruptcy proceedings.
The final orders of the court were to set aside the Registrar's orders and to fix the costs payable to the respondents in the specified amounts. The court's decision ensures that the costs awarded are in line with the directions of the primary judges and are fair and just. The orders were entered in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
QUD 113 of 2021
1. The Orders of Registrar Ellis dated 7 September 2023, amended on 14 September 2023, be set aside.
2. Pursuant to Order 3 of the Orders of Logan J made on 24 May 2022, the costs payable:
(a) to the first respondent are fixed in the sum of $50,262.91; and
(b) to the second respondent are fixed in the sum of $52,451.00.
QUD 86 of 2022
3. The Orders of Registrar Ellis dated 25 August 2023 be set aside.
4. Pursuant to Order 2 of the Orders of Goodman J made on 2 June 2023, the costs payable to the second respondent are fixed in the sum of $44,202.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons that follow, it is appropriate that, pursuant to the Order 3 of the Orders of Logan J made on 24 May 2022, the costs payable to Mr Lane be fixed in the sum of $50,262.91, and that the costs payable to the BCAL pursuant to that Order and Order 2 of the Orders of Goodman J made on 2 June 2023 be fixed in the sums of $52,451.00 and $44,202.00, respectively.BACKGROUND AND PROCEDURAL HISTORY It is appropriate to shortly set out the facts and procedural history that pertain to and contextualise the Registrar’s decisions. On 1 July 2020, Ms Thompson was made bankrupt pursuant to s 55(4A) of the Bankruptcy Act 1966 (Cth), upon the Official Receiver accepting the Debtor’s Petition presented by her on 26 June 2020. On 14 April 2021, Ms Thompson filed an annulment application, which was dismissed by Logan J on 18 February 2022: Thompson v Lane (Trustee) (No 3)[2022] FCA 128. Subsequently, in Thompson (No 4), in which His Honour addressed the costs of Thompson (No 3), Logan J made the following Orders:1.The first respondent’s costs be paid out of the bankrupt’s estate.2.The second respondent’s costs be paid out of the bankrupt’s estate with the same priority accorded by s 109(1)(a) of the Bankruptcy Act 1966 (Cth) to the trustee’s costs.3.In each instance, the costs for which this order provides be fixed by a Registrar on a lump-sum basis. On 7 July 2023, a Registrar, to whom the determination was initially referred, made Orders for, inter alia, the filing of a Costs Summary and Costs Response, in accordance with the Court’s Costs Practice Note (GPN-COSTS). For reasons of efficiency, and as notified to the parties on 16 August 2023, that determination was referred to the respondent Registrar. The review of the determination of costs by the Registrar that followed is the subject of QUD 419 of 2023. Separately, Ms Thompson filed an application to appeal from Thompson (No 3) on 23 March 2022, seeking, relevantly, that it be set aside. That application was dismissed by the Full Court, with costs, on 10 March 2023: Thompson v Lane (Trustee) [2023] FCAFC 32; 410 ALR 439 (Charlesworth, Downes and Goodman JJ). On 13 March 2023, the Full Court subsequently made an Order allowing the respondents, being Mr Lane and BCAL, to file any proposed minute of further or ancillary orders relating to the costs of the appeal and an outline of submissions in support thereof. On 28 March 2023, Goodman J ordered, relevantly, that Ms Thompson file and serve an outline of submissions by 26 April 2023 in response to the submissions filed by the respondents on 23 March 2023, that the respondents file any submissions in reply by 10 May 2023, and that:3.The submissions to be filed in accordance with orders 1 and 2 are to indicate whether the party making the submission opposes the question of costs being determined on the papers and without an oral hearing and, if so, the reason(s) for such opposition. Ms Thompson filed her submissions on 26 April 2023, but did not indicate any opposition to the determination of costs on the papers. Neither respondent filed any submissions in reply. On 12 May 2023, the Court ordered that the respondents’ applications be determined on the papers.