Clyne, P.L. v. The Deputy Commissioner of Taxation [1985] FCA 462

Clyne, P.L. v. The Deputy Commissioner of Taxation [1985] FCA 462

Because the bankrupt's affairs were complex, the examination was of the utmost importance to all parties, and the Deputy Commissioner had himself retained two counsel, the trustee and the Deputy Commissioner had not established special circumstances sufficient at that stage to justify depriving the bankrupt of junior counsel. The Court therefore granted a further allowance of $12,000.00 only, reflecting four days of representation at $3,500.00 per day less the bankrupt's offered contribution of $2,000.00, with the matter to be reviewed on 23 September 1985. The Court also held that it was not bound by the trustee's view on the allowance, though such views may carry weight in appropriate...

Jurisdiction
Australia
Judgment Date
13 September 1985
Procedural Posture
Bankruptcy / Application by Trustee for Leave to Make a Further Allowance to the Bankrupt Under S.135(1)(j) of the Bankruptcy Act, 1966 for Legal Representation at a Public Examination.
Outcome
Leave granted in part; further allowance of $12,000.00 approved, costs taxation available on application, application stood over, and costs reserved.
Legal Topics
['allowance to Bankrupt for Legal Representation' 'public Examination' 'retention of Senior and Junior Counsel' "trustee's Powers and Court Supervision" 'taxation of Costs on Solicitor and Client Basis']
['bankruptcy' 'costs'] ['allowance to Bankrupt for Legal Representation' 'public Examination' 'retention of Senior and Junior Counsel' "trustee's Powers and Court Supervision" 'taxation of Costs on Solicitor and Client Basis']

Case Brief

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Procedural Posture

Bankruptcy / Application by Trustee for Leave to Make a Further Allowance to the Bankrupt Under S.135(1)(j) of the Bankruptcy Act, 1966 for Legal Representation at a Public Examination.

Legal Issues

  1. 1 ['Whether leave should be granted to the trustee to make a further allowance to the bankrupt for counsel and solicitors at the public examination.' "Whether it was reasonable to fund the bankrupt's representation by both senior and junior counsel." "Whether the Court was bound by the trustee's view as to the desirability or amount of an allowance under s.135(1)(j)." "Whether the reasonableness of counsel's fees should be determined by taxation."]

Ratio Decidendi

Because the bankrupt's affairs were complex, the examination was of the utmost importance to all parties, and the Deputy Commissioner had himself retained two counsel, the trustee and the Deputy Commissioner had not established special circumstances sufficient at that stage to justify depriving the bankrupt of junior counsel. The Court therefore granted a further allowance of $12,000.00 only, reflecting four days of representation at $3,500.00 per day less the bankrupt's offered contribution of $2,000.00, with the matter to be reviewed on 23 September 1985. The Court also held that it was not bound by the trustee's view on the allowance, though such views may carry weight in appropriate...

Court Disposition

Leave granted in part; further allowance of $12,000.00 approved, costs taxation available on application, application stood over, and costs reserved.

Orders

  • ["Leave be granted to the trustee to make an allowance to the bankrupt in the further sum of $12,000.00 for the purpose of the bankrupt's retainer of counsel and solicitors at his public examination on 16, 17 and 18 September 1985." 'Upon the application of any party, the costs incurred by the bankrupt to the date...