Thompson v Lane (Trustee) (Costs) - [2023] FCA 568

FEDERAL COURT OF AUSTRALIA
Thompson v Lane (Trustee) (Costs) [2023] FCA 568

File number(s): QUD 86 of 2022

Judgment of: GOODMAN J

Date of judgment: 2 June 2023

Catchwords: COSTS – Full Court ordered that the appellant pay the respondents’ costs – second respondent sought order providing priority in the payment of its costs and for its costs to be fixed on a lump-sum basis – application granted

Legislation:
Bankruptcy Act 1966 (Cth), ss 32, 109

Federal Court of Australia Act 1976 (Cth), ss 37M, 43

Federal Court (Bankruptcy) Rules 2016 (Cth), r 13

Federal Court Rules 2011 (Cth), r 40

Body Corporate and Community Management Act 1997 (Qld), ss 94 and 100

Cases cited:
Kerr (Trustee), in the matter of Cross (Bankrupt) v Bechara (No 2) [2015] FCA 444

Lawman v Queensland Building Services Authority [2000] FCA 174

Paciocco v Australia and New Zealand Banking Group Ltd (No 2) [2017] FCAFC 146; (2017) 253 FCR 403

Thompson v Lane (No 3) [2022] FCA 128

Thompson v Lane (Trustee) (No 4) [2022] FCA 616

Thompson v Lane (Trustee) [2023] FCAFC 32

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 20

Date of last submission/s: 26 April 2023

Date of hearing: Determined on the papers

Counsel for the Appellant: Ms E Thompson appeared in person

Solicitor for the First Respondent: Mr R O’Sullivan of Shand Taylor Lawyers

Counsel for the Second Appellant: Mr W D J Macintosh

Solicitor for the Second Respondent: Grace Lawyers

ORDERS

QUD 86 of 2022

BETWEEN:
EMMA NARELLE CATHRYN THOMPSON

Appellant

AND:
MORGAN LANE AS TRUSTEE OF THE BANKRUPT ESTATE OF EMMA NARELLE CATHRYN THOMPSON

First Respondent

BODY CORPORATE FOR ARILA LODGE CTS 14237

Second Respondent

ORDER MADE BY:

GOODMAN J

DATE OF ORDER:

2 JUNE 2023

THE COURT ORDERS THAT:
1.The second respondent’s costs pursuant to Order 2 of the Orders made on 10 March 2023 be paid out of the appellant’s bankrupt estate with the same priority accorded by s 109(1)(a) of the Bankruptcy Act 1966 (Cth) to the first respondent’s costs.
2.The quantum of the costs payable to the second respondent pursuant to Order 2 of the Orders made on 10 March 2023 be awarded in a lump-sum pursuant to rule 40.02(b) of the Federal Court Rules 2011 (Cth), to be determined by a Registrar of the Court, who shall upon such determination, make an order fixing the amount of those costs.

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

REASONS FOR JUDGMENT
GOODMAN J
A. INTRODUCTION AND BACKGROUND

These reasons for judgment deal with applications by the respondents for further or ancillary orders concerning the costs of the appeal in Thompson v Lane (Trustee) [2023] FCAFC 32.
On 18 February 2022, Logan J made an order dismissing the appellant’s application to annul her bankruptcy, and published his reasons for doing so: Thompson v Lane (No 3) [2022] FCA 128

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 Thompson v Lane (Trustee) (Costs)

Details

AGLC: Thompson v Lane (Trustee) (Costs) [2023] FCA 568
Case: [2023] FCA 568
Decision Date: 2 June 2023

CaseChat Overview and Summary

The appeal before the court involved Thompson, the appellant, against Lane, the trustee, in relation to costs. The appellant did not contest the payment of costs to the respondents but argued against the specific terms proposed by the second respondent regarding the priority and method of cost payment. The second respondent sought an order that its costs be paid with the same priority as the first respondent’s costs and that the costs be fixed on a lump-sum basis. The appellant did not make specific submissions regarding these terms, relying instead on broader arguments that were rejected by the court. The court found in favour of the second respondent's application, ordering that the second respondent's costs be paid with the same priority as the first respondent’s and that the quantum of these costs be awarded in a lump sum, to be determined by a Registrar of the Court.

The legal issues before the court involved interpreting the priority of costs payment as provided by statute and determining the appropriate method for assessing costs in this context. Specifically, the court had to decide whether the second respondent’s costs should be given the same priority as those of the first respondent, as provided under section 109(1)(a) of the Bankruptcy Act 1966 (Cth). Additionally, the court had to consider whether the costs should be awarded in a lump sum as requested by the second respondent, in accordance with rule 40.02(b) of the Federal Court Rules 2011 (Cth). The appellant did not contest the payment of costs but argued against the specific terms proposed by the second respondent. The court's decision hinged on the statutory priority of costs and the procedural rules governing cost assessment.

The court concluded that the second respondent’s costs should indeed be paid with the same priority as the first respondent’s, aligning with section 109(1)(a) of the Bankruptcy Act 1966 (Cth). The court also granted the second respondent's request for a lump-sum assessment of costs, as permitted under rule 40.02(b) of the Federal Court Rules 2011 (Cth). The appellant’s lack of specific submissions regarding these terms and the court’s rejection of the broader arguments presented meant that the court was left to address the second respondent's application on its merits. Consequently, the court ordered that the second respondent's costs be paid with the same priority as the first respondent's and that the quantum of these costs be determined in a lump sum by a Registrar of the Court.

Orders

Orders of the court

1. The second respondent’s costs pursuant to Order 2 of the Orders made on 10 March 2023 be paid out of the appellant’s bankrupt estate with the same priority accorded by s 109(1)(a) of the Bankruptcy Act 1966 (Cth) to the first respondent’s costs.

2. The quantum of the costs payable to the second respondent pursuant to Order 2 of the Orders made on 10 March 2023 be awarded in a lump-sum pursuant to rule 40.02(b) of the Federal Court Rules 2011 (Cth), to be determined by a Registrar of the Court, who shall upon such determination, make an order fixing the amount of those costs.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant did not make any specific submissions as to whether a lump-sum costs order should be made. Her submissions were all dependent upon her over-arching submission, which I have rejected (see [9] and [10] above). D. CONCLUSION Orders to the effect of those sought by the second respondent should be made. I will make orders accordingly.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	QUD 86 of 2022
Judgment of:	GOODMAN J
Date of judgment:	2 June 2023
Catchwords:	COSTS – Full Court ordered that the appellant pay the respondents’ costs – second respondent sought order providing priority in the payment of its costs and for its costs to be fixed on a lump-sum basis – application granted
Legislation:	Bankruptcy Act 1966 (Cth), ss 32, 109 Federal Court of Australia Act 1976 (Cth), ss 37M, 43 Federal Court (Bankruptcy) Rules 2016 (Cth), r 13 Federal Court Rules 2011 (Cth), r 40 Body Corporate and Community Management Act 1997 (Qld), ss 94 and 100
Cases cited:	Kerr (Trustee), in the matter of Cross (Bankrupt) v Bechara (No 2) [2015] FCA 444 Lawman v Queensland Building Services Authority [2000] FCA 174 Paciocco v Australia and New Zealand Banking Group Ltd (No 2) [2017] FCAFC 146; (2017) 253 FCR 403 Thompson v Lane (No 3) [2022] FCA 128 Thompson v Lane (Trustee) (No 4) [2022] FCA 616 Thompson v Lane (Trustee) [2023] FCAFC 32
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Number of paragraphs:	20
Date of last submission/s:	26 April 2023
Date of hearing:	Determined on the papers
Counsel for the Appellant:	Ms E Thompson appeared in person
Solicitor for the First Respondent:	Mr R O’Sullivan of Shand Taylor Lawyers
Counsel for the Second Appellant:	Mr W D J Macintosh
Solicitor for the Second Respondent:	Grace Lawyers

ORDER MADE BY:	GOODMAN J
DATE OF ORDER:	2 JUNE 2023