Tsecouras v Price
[2009] FMCA 307
•2 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TSECOURAS v PRICE | [2009] FMCA 307 |
| BANKRUPTCY – Bill of costs – whether notice of objection to estimate filed out of time – where objection filed by the applicant, a bankrupt, without the consent of the trustee. |
Federal Magistrates Court (Bankruptcy) Rules 2006
Federal Court Rules
| Applicant: | PETER TSECOURAS |
| Respondent: | ANNE PRICE |
| File Number: | SYG 2886 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 2 April 2009 |
| Date of Last Submission: | 2 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 2 April 2009 |
REPRESENTATION
| For the Applicant: | In person |
| For the Respondent: | No appearance |
ORDERS
Application dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2886 of 2007
| PETER TSECOURAS |
Applicant
And
| ANNE PRICE |
Respondent
REASONS FOR JUDGMENT
On 2 October 2007 I gave judgment in an application to set aside a bankruptcy notice. I ordered that the application of the bankrupt, Mr Tsecouras, be dismissed and I ordered that the applicant should pay the respondent's costs to be taxed, if not agreed, pursuant to the Federal Magistrates Court (Bankruptcy) Rules 2006.
The respondent to the application, Ms Price, through her solicitors filed a bill of costs and the bill was eventually assessed by
Registrar Hannigan of this Court in accordance with the Federal Court Rules o.62, r.40(2). Registrar Hannigan informed the parties that under o.62 para.46(3)(b) of the Federal Court Rules the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue is $1,870.00. She pointed out in her letter of 27 October 2008 that a party interested may within 21 days after the date of issue of a notice file and serve on the other party a notice of objection to the estimate.
On 17 December 2008 Mr Tsecouras filed an affidavit in this Court objecting to the items on the party-party bill of costs. The affidavit included a letter that he had written to the Court on 11 November 2008 advising as follows:
“Please note I do not consider I owe this money at the current time. The judgment made on 26 February 2007 is not accepted by me. The original decision of McCreadie J did not acknowledge the affidavits I lodged which stated that the affidavits of the opposing parties were full of errors in facts. I did not know of all the errors made at the time of this judgment until I received transcripts and they were explained to me. I subpoenaed the parties making affidavits at the time, but they never appeared in court to answer questions regarding the lies and errors in facts made by them.
I do not believe the matter is yet complete and payment for all costs should come from the estate of the late Diane Keefe and Anne Price should pay as the executrix of this Estate. Mistakes were made in their affidavits made by the beneficiaries of the will and they should pay for them by paying my claim. Diane Keefe was my partner for 40 years and they should recognise the fact instead of colluding against me.”
Whilst there has to be some doubt whether the letter of 11 November 2008 would constitute an objection for the purposes of the rules, which would mean that the objection filed in this Court on 17 December 2008 was out of time, there is a more fatal objection to the application.
The order for costs was made before Mr Tsecouras became a bankrupt, but he later did so. Therefore, any obligation to pay these costs is an obligation of his bankrupt estate. The controller of his bankrupt estate is the Insolvency and Trustee Service Australia. Any decision as to whether or not an objection should be made to the draft bill of costs is the responsibility of the trustee. Mr Tsecouras as a bankrupt has no standing in this matter.
I have found on file a letter from the Insolvency and Trustee Service Australia dated 24 December 2008 addressed to Registrar Hannigan. It states, inter alia:
“The view of the Official Trustee in Bankruptcy is that the applicant has no standing to object to the costs in this matter …”
This is a view which I endorse.
The application is dismissed. There being no appearance on behalf of any person other than Mr Tsecouras, I make no order as to costs.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 8 April 2009
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