Zollo v Official Trustee

[2005] FMCA 619

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZOLLO & ANOR v OFFICIAL TRUSTEE [2005] FMCA 619

COSTS – Bankruptcy – indemnity costs – circumstances in which award of indemnity costs will be awarded.

Bankruptcy Act 1966 (Cth), s.116(2)

Citibank Ltd v Parker (2000) 181 ALR 115
Hughes v Car Buyers (2004) 210 ALR 65

Applicant: ALESSANDRO ZOLLO & ANOR

Respondent: OFFICIAL TRUSTEE

File number: ADG 222 of 2003

Judgment of: Lindsay FM

Hearing date: 4 March 2004

Date of last submission: 4 March 2004

Delivered at: Adelaide

Delivered on: 13 May 2005

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr G Gretsas

Solicitors for the Respondent: Gretsas Chrzaszcz

ORDERS

1. That the applicants do pay the respondents’ costs of and incidental to the applications filed on 17 September 2003 and 22 April 2004 being such costs as may be agreed within 28 days or as may be taxed upon application following the expiry of that period.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 222 of 2003

ALEXANDRA ZOLLO & ANOR

Applicant

And

OFFICIAL TRUSTEE

Respondent

REASONS FOR JUDGMENT

1. On 10 March 2005 I delivered my judgment in respect of two applications brought by the applicants.  They were each dismissed.  Application has been made that the respondent have its costs of each application and have them on an indemnity.

2. The first application was that which took the greater time.  It was for declarations which would have had the effect of discharging the bankruptcies.  If successful, the applications would have had this effect because I would have found the date of the lodgement of Statements of Affairs by the parties to have been more than three years prior to the hearing.

3. The application was refused because I did not accept the evidence of the applicants as to the date of filing of those documents.  I do not propose to repeat the reasons for that determination herein.

4. The second application was brought when judgement on the first was reserved.  It did not take very long to determine.  It sought orders requiring the respondent to “permit or support” certain Magistrates Court (State) proceedings.  It was misconceived.  There was nothing the trustees could do to advance the applicant’s claim.

5. Tamberlin J in Citibank Ltd v Parker (2000) 181 ALR 115 at [6] and [7] sets out succinctly the general position relating to costs in this jurisdiction of the Court:

   “[6]    Costs are at the discretion of the court but that discretion must be exercised judicially.  The general rule is that costs follow the event.  There is no special rule as to the costs of an Official Receiver or trustee in the context of bankruptcy and it is necessary to closely examine the circumstances of each case.

   [7]  As Young J in the Supreme Court of New South Wales observed in Ramirez v Sandor’s Trustee (No 2) (SC(NSW), Young J, 23 October 1997, BC9705824, unreported) at p 3:

   ‘ … there is no special rule as to the payment of costs to or by an Official…