Zoureff, Pearl v Apel, Isaac

[1998] FCA 661

PEARL ZOUREFF v. ISAAC APEL AND ANOTHER
No. VG 7522 of 1997
FED No. 661/98
Number of pages - 2

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

FINN J

MELBOURNE, 31 March 1998 (hearing), 10 June 1998 (decision)

#DATE 10:6:1998, CANBERRA

Counsel for the Applicant: P Collinson

Solicitor for the Applicant: Jerrard and Stuk

Counsel for the Respondent: J Delaney

Solicitor for the Respondent: Darrer Muir Fleiter

THE COURT ORDERS THAT:

1. The Applicant pay the costs of the Respondent of 13 October 1997 on an indemnity basis.

2. Otherwise the Applicant is to pay the costs of the Respondent on a party and party basis.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

FINN J

Costs

Save in relation to one matter, this case is one in which the usual rule as to costs ought apply: as to the usual rule see Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 732ff. The first respondent, Mr Apel, has successfully resisted the claim of the applicant, Mrs Zoureff, to have a Part X deed of arrangement declared void or else terminated under s 222 or else s 236 of the Bankruptcy Act 1966.

Counsel for Mrs Zoureff has submitted that no costs order should be made, Mr Apel having failed on some issues, the application itself being understandable in the circumstances, productive of new evidence, but unsuccessful on discretionary grounds: cf Re Williamson; Ex parte Wearne (1980) 31 ALR 598 at 607-608.

I will not rehearse here in any detail the circumstances or outcome of Mrs Zoureff's application. I refer simply to my judgment in the matter delivered on 11 March 1998. Suffice it to say, given the history of the matter and the views I there expressed, I do not consider that "the justice of the case" or "some special or unusual feature in the case" would justify a departure from the usual rule: cf Re Wilcox, above, at 733.

Counsel for Mr Apel, in contrast, has submitted that from the day on which Mrs Zoureff's amended application was filed (25 August 1997) up to and including the first day of the hearing (13 October 1997), costs should be awarded Mr Apel on an indemnity basis. The justification advanced for this is that the case as prosecuted (in the Statement of Grounds ultimately relied upon), differed significantly from those originally served and on the basis of which Mr Apel prepared his defence of the application.

It is the case that much in the original Statement of Grounds was abandoned at the first day of the hearing and new grounds were added. The explanation then given was that significant factual material that generated the new grounds only emerged in response to subpoenas in the week prior to the hearing.

When the amendment to the grounds was sought I raised the question whether the respondents were ready to proceed. No adjournment was sought. Nonetheless the effect of the amendment and the need to ensure that the case was properly particularised so that Mr Apel would be appraised of the case he had to meet, were that the hearing time on the first day was wasted.

While I do not accept that the applicant's conduct of the proceeding up to and including the first day warrants an indemnity costs order for that entire period, I do consider such an award appropriate in relation to the costs of the first day of hearing. I will order accordingly.