YI v CHAN and Li Trading Pty Ltd
[2003] FMCA 95
•11 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YI v CHAN & LI TRADING PTY LTD | [2003] FMCA 95 |
| BANKRUPTCY – Annulment – whether proceedings should be adjourned pending taxation of Trustees costs and annulment under s.153A of the Bankruptcy Act. |
Federal Court of Australia Regulations, s.167(9)
Bankruptcy Act 1966 (Cth), s.153A, 153B
| Applicant: | WANG YI |
| Respondent: | CHAN & LI TRADING PTY LTD |
| File No: | SZ 875 of 2002 |
| Delivered on: | 11 March 2003 |
| Delivered at: | Sydney |
| Hearing date: | 11 March 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr J K Chippindall |
| Solicitors for the Applicant: | Schrader & Associates |
| Solicitors for the Trustee: | Sally Nash & Co |
ORDERS
Application dismissed
Applicant to pay the respondent’s costs, including costs of the trustee, save the legal costs involved in the proceedings on 11 February in respect of which there shall be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 875 of 2002
| WANG YI |
Applicant
And
| CHAN & LI TRADING PTY LIMITED |
Respondent
REASONS FOR JUDGMENT
This application for annulment first came before this court on 15 October 2002 and has been adjourned several times. This, of course, has had the effect of increasing the costs. At an early stage the petitioning creditor advised the court that his client's debt had been compromised and so there was no outstanding debt to anyone other than the trustee.
The trustee indicated that he would only be prepared to consent to an annulment under s.153A if security could be given for his costs. The bankrupt considered that the amount of the trustee's costs was excessive. The result of the hearings before the court was that the applicant bankrupt made an application pursuant to s.167(9) of the Federal Court of Australia Regulations to the Insolvency and Trustee Service Australia for the trustee's costs to be taxed. That application was made on 7 March 2003 and has not yet been responded to. I have no reason to believe that it will not be.
The trustee's advocate points out that after the costs have been taxed and paid the bankrupt will be entitled to an automatic annulment under s.153A of the Bankruptcy Act 1966 (Cth). She submits that the current proceedings should now be dismissed and the matter should be allowed to take its course.
On behalf of the bankrupt Mr Chippindall asks that the proceedings continue in adjournment until the taxation has taken place. There has been some indication given to the court that at an appropriate time payment of the trustee's costs will be made by the bankrupt's wife.
There is no doubt that this is an unfortunate case. The amount of costs claimed by the trustee appears at first sight to be large, but it is not fair for the court to make gratuitous comments upon that particularly when those costs are now going to be taxed.
I am of the view that there is little utility in continuing to adjourn this application. I think that everything possible should be done to avoid further costs and the best way that this can happen is if the taxation is allowed to proceed and the bankruptcy be annulled pursuant to s.153A after the amount of the taxed costs has been paid by one means or another by or on behalf of the bankrupt. I therefore propose to dismiss the application.
I have heard the parties on costs. There is an obligation on the trustee to prepare reports to the court when an application for annulment under s.153B is made and there is no doubt in my mind that the trustee should have his costs for undertaking that work. Although Mr Chippindall says that there is no obligation on the trustee to appear, the courts have continually found assistance from trustees appearing on these occasions and generally I have ordered them their costs for so doing. The only matter of concern that I have is what occurred on one hearing before me when it appeared that agreement had been reached and then (without being critical of either party) resiled from. The order I propose to make is that the applicant should pay the respondent's costs, reserved costs and the costs of the trustee, save the legal costs involved in the proceedings on
11 February in respect of which there shall be no order as to costs.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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