Townend v Townend and Anor (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TOWNEND v TOWNEND & ANOR (No.2) [2008] FMCA 1612
[2008] FMCAfam 1299

COSTS – Claim for indemnity costs of family law proceedings – claim for costs of bankruptcy proceedings – considerations relevant to the assessment of costs – no opportunity to consider merits of unsuccessful claim – award of costs not appropriate.

Bankruptcy Act 1966 (Cth)
Family Law Act 1975 (Cth), s.117

Re Minister for Immigration; ex parte Lai Qin (1997) 186 CLR 622
Townend v Townend & Anor [2008] FMCA 1610; [2008] FMCAfam 1298

Applicant: JOYCE MARY TOWNEND

First Respondent: MILES HAMILTON TOWNEND

Second Respondent: OFFICIAL TRUSTEE IN BANKRUPTCY

File Number:

SYC 6330 of 2007

SYG 1919 of 2008

Judgment of: Driver FM

Hearing date: 1 December 2008

Delivered at: Sydney

Delivered on: 23 December 2008

REPRESENTATION

Counsel for the Applicant: Mr D Dura

Solicitors for the Applicant: Gray & Perkins

Counsel for the First Respondent: Mr D Jarrett

Counsel for the Second Respondent: Mr J Johnson

Solicitors for the Second Respondent: Sally Nash & Co

ORDERS

1. There be no order as to costs as between the Official Trustee in Bankruptcy and Mr and Ms Townend in relation to the proceedings under the Family Law Act 1975 (Cth).

2. The Official Trustee’s costs of the proceedings under the Bankruptcy Act 1966 (Cth) be costs of the administration of the estate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 6330 of 2007

SYG 1919 of 2008

JOYCE MARY TOWNEND

Applicant

And

MILES HAMILTON TOWNEND

First Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. On 1 December 2008 I dismissed proceedings instituted by Ms Townend under the Family Law Act 1975 (Cth) (“the Family Law Act”) against the Official Trustee in Bankruptcy. Proceedings under that Act between Mr and Ms Townend have settled. Other proceedings under the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) between the parties were resolved by consent orders. The only issue remaining to be resolved is what, if any, order should be made in relation to the costs of the proceedings under the Family Law Act and the Bankruptcy Act.

2. The trustee seeks his costs of the proceedings, including indemnity costs against Ms Townend.  In my principal judgment[1] at [9] I said that I would defer consideration of the issue of costs until completion of the proceedings between all of the parties. 

   [1] Townend v Townend & Anor [2008] FMCA 1610; [2008] FMCAfam 1298

Consideration

1. The terms of settlement as between Mr and Ms Townend in respect of their proceedings under the Family Law Act included an order that there be no order as to costs of those proceedings as between the husband and the wife. Accordingly, there will be no order as to costs in relation to those proceedings.

2. The consent orders I made in relation to proceedings instituted by the Official Trustee against Ms Townend under the Bankruptcy Act were as follows:

   1.A declaration that the property at 84 Maxwell…