FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TOTTERDELL v D’ANGELO (No.2) | [2004] FMCA 700 |
| BANKRUPTCY – Costs – whether costs order appropriate where declaration made pursuant to s.222(2) of the Bankruptcy Act 1966. |
Bankruptcy Act 1966, s.32, 64ZC
Musolino v Sidiropoulos (1991) 101 ALR 235
Oayda v Mercantile Mutual Life Insurance Co Ltd (1995) ANZ ConvR 225
Cummings v Lewis (1993) 41 FCR 559
Bent v Gough (1992) 36 SCR 204; 108 ALR 131
| Applicant: | GEOFFREY FRANK TOTTERDELL |
| Respondent: | JOHN NICHOLAS D’ANGELO |
| File No: | WZ 49 of 2004 |
| Delivered on: | 29 October 2004 |
| Delivered at: | Melbourne (by video link to Perth) |
| Date of Last Submission: | 6 October 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr F Carles |
| Solicitors for the Applicant: | Carles Solicitors |
| Counsel for the Respondent: | Mr P Arns |
| Solicitors for the Respondent: | Arns & Associates |
| Counsel for the Creditors namely: Leonard David Goldstein | Mr N Dillon |
| Counsel for the National Australia Bank: | Mr J Atkinson |
| Solicitors for the National Australia Bank: | Minter Ellison |
ORDERS
(1)Pursuant to s.222(2) of the Bankruptcy Act 1966, the composition accepted by a meeting of creditors of the respondent on 7 January 2004 be declared not void.
(2)The syndicate of creditors be jointly and severally liable to pay the costs of the National Australia Bank of and incidental to the proceedings, including reserved costs, if any, to be taxed in default of agreement pursuant to order 62 of the Federal Court Rules.
(3)Pursuant to Rule 21.15 of the Federal Magistrates Court Rules the Court certifies that it was reasonable for the parties to employ an advocate to appear in the proceeding.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
WZ 49 of 2004
| GEOFFREY FRANK TOTTERDELL |
Applicant
And
| JOHN NICHOLAS D’ANGELO |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter the court delivered a judgment on 24 September 2004 and at that time an order was made that pursuant to s.222(2) of the Bankruptcy Act 1966 (the Act) that the composition accepted under Part X of the Bankruptcy Act as presented to a meeting of creditors of the respondent held on 7 January 2004 was declared to be not void.
It was indicated to the parties that I would hear submissions in relation to other orders which may be appropriate arising out of the declaration, including any orders for costs. The parties were given the opportunity of filing and serving written submissions. The court has received the following:-
·Applicant's submissions on costs filed 30 September 2004.
·Applicant's supplementary submissions on costs dated 6 October 2004.
·Respondent's submissions as to costs filed 30 September 2004.
·Syndicate of employee creditor submissions on orders including orders in relation to costs dated 30 September 2004.
·National Australia Bank Ltd (the NAB) submissions on costs.
The applicant's submissions
The applicant submitted that there should be no order for costs as between the…
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- AGLC
- Totterdell v D'Angelo (No.2) [2004] FMCA 700
- Case
- [2004] FMCA 700
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the composition accepted by the creditors on 7 January 2004 was valid and whether the respondent's challenge to its validity was justified. The legal issues centred on the interpretation of the statutory provisions concerning the composition process and the rights of creditors and the bankrupt in such proceedings. Specifically, the court had to consider whether the composition met the requirements set out in section 222(2) of the Bankruptcy Act 1966 and whether there were any procedural irregularities that would render the composition invalid.
In its reasoning, the court found that the composition did not suffer from any significant irregularities and met the statutory requirements for validity. The court held that there was no basis to declare the composition void and that the respondent's challenge was without merit. The court also considered the costs implications of the proceedings, ordering that the syndicate of creditors be jointly and severally liable for the costs of the National Australia Bank and that the Court certified the reasonableness of employing an advocate in the proceeding.
The final orders of the court were that the composition accepted by the creditors on 7 January 2004 be declared not void, the syndicate of creditors be jointly and severally liable to pay the costs of the National Australia Bank, and that the Court certify the reasonableness of employing an advocate. These orders reflect the court's determination that the composition process was conducted properly and that the respondent's challenge was unsuccessful.
Orders
Orders of the court
(1) Pursuant to s.222(2) of the Bankruptcy Act 1966, the composition accepted by a meeting of creditors of the respondent on 7 January 2004 be declared not void.
(2) The syndicate of creditors be jointly and severally liable to pay the costs of the National Australia Bank of and incidental to the proceedings, including reserved costs, if any, to be taxed in default of agreement pursuant to order 62 of the Federal Court Rules.
(3) Pursuant to Rule 21.15 of the Federal Magistrates Court Rules the Court certifies that it was reasonable for the parties to employ an advocate to appear in the proceeding.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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