Ward v Keet [No 5]

[2014] WASC 490

WARD -v- KEET [No 5] [2014] WASC 490

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 490
Case No:	CIV:1566/2006	Heard:	ON THE PAPERS
Coram:	McKECHNIE J	Delivered:	19/12/14
No of pages:	4	Judgment Part:	1 of 1
Result:	Questions answered:  The court has no power to grant leave
Category:	B
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Parties:	SUSAN ANNE WARD and JULIA MURIEL LAURISSON as Executors of the Estate of the late DOROTHY MURIEL LUKIN SUSAN ANNE WARD and JULIA MURIEL LAURISSON as Administrators of the Incapable Estate of LOUISE LUKIN LAKE WAY STATION PTY LTD JOHN FRANCIS DESMOND KEET NATIONAL AUSTRALIA BANK LTD CLIVE STEWART BAIN
Catchwords:	Court and judges Exercise of Federal jurisdiction Whether taxing officer can grant leave to take fresh step in proceedings
Legislation:	Bankruptcy Act 1966 (Cth), s 27, s 58(3)
Case References:	Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : WARD -v- KEET [No 5] [2014] WASC 490 CORAM : McKECHNIE J HEARD : ON THE PAPERS DELIVERED : 19 DECEMBER 2014 FILE NO/S : CIV 1566 of 2006 BETWEEN : SUSAN ANNE WARD and JULIA MURIEL LAURISSON as Executors of the Estate of the late DOROTHY MURIEL LUKIN

First Plaintiffs

SUSAN ANNE WARD and JULIA MURIEL LAURISSON as Administrators of the Incapable Estate of LOUISE LUKIN
Second Plaintiffs

LAKE WAY STATION PTY LTD
Third Plaintiff

AND

JOHN FRANCIS DESMOND KEET
First Defendant

NATIONAL AUSTRALIA BANK LTD
Second Defendant

CLIVE STEWART BAIN
Third Party

Catchwords:

Court and judges - Exercise of Federal jurisdiction - Whether taxing officer can grant leave to take fresh step in proceedings

Legislation:

Bankruptcy Act 1966 (Cth), s 27, s 58(3)

Result:

Questions answered: The court has no power to grant leave

Category: B

Representation:

Counsel:

First Plaintiffs : No appearance
Second Plaintiffs : No appearance
Third Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Party : No appearance

Solicitors:

First Plaintiffs : Metaxas & Hager
Second Plaintiffs : Metaxas & Hager
Third Plaintiff : Metaxas & Hager
First Defendant : Corser & Corser
Second Defendant : Jackson McDonald
Third Party : DLA Piper Australia

Case(s) referred to in judgment(s):

Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52

1 McKECHNIE J: In proceedings commenced in 2006 the plaintiffs sued the first defendant, Keet, and another.

2 On 20 April 2010 as a consequence of failure to comply with the springing order the first defendant's defence was struck out and he was ordered to pay a judgment sum and the plaintiffs costs in the action to be taxed. A bill of costs for taxation was prepared but before being filed Mr Keet was placed into bankruptcy.

3 The trustee of his estate wrote to the plaintiffs' solicitor as follows:

I note that you have claimed legal costs totalling $68,097 as per your draft bill of costs. I note that the judgment order dated 20 April 2010 requires these costs to be taxed.

I confirm I have no objection to your draft Bill of Costs. Please proceed to have these costs taxed and provide me with a Certificate of Taxation as soon as possible.

4 The plaintiffs' solicitors wrote to the court enquiring whether the allocator can be endorsed by the registrar in the amount claimed without the necessity of the parties attending. The registrar raised a query as to the power to continue having regard to the Bankruptcy Act 1966 (Cth) s 58 which provides, relevantly by s 58(3):

Except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor:

(a) to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or

(b) except with the leave of the Court and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding.

5 In Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 judgment was given against the defendant and he was ordered to pay damages. After the orders were made he became bankrupt on his own petition. Some months later he was ordered to pay costs of the proceedings. He contended that the costs order was a debt provable in his bankruptcy and that leave was required.

6 The court (Kirby J dissenting) held that the costs order was not a liability which arose from an obligation incurred before bankruptcy. The obligation had not arisen until the costs order was made.

7 In the present case the costs order being made before bankruptcy, the filing of a bill for taxation constitutes a fresh step in legal proceedings and leave is required.

8 The plaintiffs do not argue to the contrary.

9 Pursuant to Rules of the Supreme Court 1971 (WA) O 68 r 3(3) the registrar, having received submissions from the plaintiff referred questions to a judge:

1. Does a Registrar as taxing officer constitute the 'Court' for the purposes of s 58(3)(b) so as to be able to grant leave to tax costs?

2. If the answer to the question is 'no', then can or will the Court grant leave on this referral?

10 The Bankruptcy Act 1966 (Cth) gives exclusive jurisdiction in matters relating to bankruptcy to the Federal Court and the Federal Circuit Court: s 27(1). The Bankruptcy Act s 5 the words 'the Court' is defined and 'means a Court having jurisdiction in bankruptcy under this Act'. The reference in s 58(3) is therefore not a reference to the Supreme Court of Western Australia. This court has no jurisdiction to grant leave to take any fresh step in legal proceedings.

11 The answers to the questions are:

(1) No.

(2) No.