Touma v Gold Holding Pty Ltd, in the matter of Touma

[2004] FCA 1024

FEDERAL COURT OF AUSTRALIA

Touma v Gold Holding Pty Ltd, In the matter of Touma [2004] FCA 1024

Costs – leave to discontinue proceedings – applicant paid moneys claimed in bankruptcy notice

Aussie Red Equipment Pty Ltd v Antsent Pty Ltd [2001] FCA 1641 cited
ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; 101 FCR 548 cited

DANIEL TOUMA v GOLD HOLDING PTY LTD ACN 056 695 535, IN THE MATTER OF DANIEL TOUMA
N 498 OF 2004

MOORE J
3 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 498 OF 2004

IN THE MATTER OF DANIEL TOUMA

BETWEEN:	DANIEL TOUMA APPLICANT
AND:	GOLD HOLDING PTY LTD ACN 056 695 535 RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	3 AUGUST 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The applicant be granted leave to discontinue the proceedings.

2.        The applicant pay the respondent's costs of the application.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 498 OF 2004

IN THE MATTER OF DANIEL TOUMA

BETWEEN:	DANIEL TOUMA APPLICANT
AND:	GOLD HOLDING PTY LTD ACN 056 695 535 RESPONDENT

JUDGE:	MOORE J
DATE:	3 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Mr Daniel Touma ("the applicant") applied to set aside a bankruptcy notice.  The applicant now seeks the Court's leave to discontinue the proceedings.  That is not opposed.  However, there is an issue about costs.  The issues raised by the applicant in the application will remain undetermined because the proceedings will be discontinued.  Nonetheless the applicant has, and did so finally by a payment made on or about 2 August 2004, paid the moneys claimed by the bankruptcy notice, namely $14,343.65.

2. These proceedings have been on foot for some time.  There is nothing in the material before me to suggest that the question of costs of these proceedings was addressed in discussions between the parties let alone resolved when the final payment was made.  In paying the amounts and thereby satisfying the claim in the bankruptcy notice, the applicant has effectively surrendered to the respondent: see Aussie Red Equipment Pty Ltd v Antsent Pty Ltd [2001] FCA 1641 and ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270.

3. In those circumstances, in my opinion, the respondent is entitled to its costs of the application.  In addition the respondent seeks indemnity costs.  I am not satisfied that on the material before me such an order should be made.  Accordingly, I propose to give the applicant leave to discontinue the proceedings and, secondly, order that the applicant pay the respondent's costs of the proceedings.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:            9 August 2004

Solicitor for the Applicant:	CK Lawyers
Counsel for the Respondent:	J T Johnson
Solicitor for the Respondent:	Smith Monti Legal
Date of Hearing:	3 August 2004
Date of Judgment:	3 August 2004