Re Burton, Leslie Ross Ex Parte Wily, Hugh Jenner Brandon Pty Ltd NJW Contractors Pty Ltd [1995] FCA 844

Re Burton, Leslie Ross Ex Parte Wily, Hugh Jenner Brandon Pty Ltd NJW Contractors Pty Ltd [1995] FCA 844

Mr Burton and NJW Contractors Pty Limited must pay the trustee’s costs for the annulment application on an indemnity basis; in the Brandown application, Mr Burton and NJW Contractors Pty Limited must pay the trustee's and other respondents' costs, assessed as costs of a defended proceeding, but not on an indemnity basis, and excluding costs incidental to the cross-claim.

Parties
Applicant/first Cross Respondent/trustee: Hugh Jenner Wily; First Respondent: Brandown Pty Limited; Second Respondent/cross Claimant: NJW Contractors Pty Limited; Third Respondent/second Cross Respondent: Patrick James Hallinan; Third Respondent/second Cross Respondent: Max David Rodgers; Third Respondent/second Cross Respondent: George Frank Rodgers; Bankrupt/applicant/respondent: Leslie Ross Burton
Jurisdiction
Australia
Judgment Date
20 September 1995
Procedural Posture
Applications for Recovery of Shares and for Annulment of Bankruptcy / Costs Determination Following Judgment
Outcome
Costs orders in favour of trustee and other respondents against Mr Burton and NJW Contractors Pty Limited; indemnity costs for the annulment application; costs for Brandown application on defended proceeding scale; no costs for cross-claim or out of bankrupt estate.
Legal Topics
Annulment of Bankruptcy, Recovery of Company Shares, Costs Orders, Indemnity Costs
Bankruptcy Civil Procedure Annulment of Bankruptcy Recovery of Company Shares Costs Orders Indemnity Costs

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Parties

Hugh Jenner Wily

Applicant/first Cross Respondent/trustee

Brandown Pty Limited

First Respondent

NJW Contractors Pty Limited

Second Respondent/cross Claimant

Patrick James Hallinan

Third Respondent/second Cross Respondent

Max David Rodgers

Third Respondent/second Cross Respondent

George Frank Rodgers

Third Respondent/second Cross Respondent

Leslie Ross Burton

Bankrupt/applicant/respondent

Procedural Posture

Applications for Recovery of Shares and for Annulment of Bankruptcy / Costs Determination Following Judgment

Legal Issues

  1. 1 Who should bear the costs of the annulment application?
  2. 2 Who should bear the costs of the Brandown application?
  3. 3 Should costs be awarded on an indemnity basis?

Ratio Decidendi

Mr Burton and NJW Contractors Pty Limited must pay the trustee’s costs for the annulment application on an indemnity basis; in the Brandown application, Mr Burton and NJW Contractors Pty Limited must pay the trustee's and other respondents' costs, assessed as costs of a defended proceeding, but not on an indemnity basis, and excluding costs incidental to the cross-claim.

Court Disposition

Costs orders in favour of trustee and other respondents against Mr Burton and NJW Contractors Pty Limited; indemnity costs for the annulment application; costs for Brandown application on defended proceeding scale; no costs for cross-claim or out of bankrupt estate.

Orders

  • Costs of annulment application to be paid by Mr Leslie Ross Burton and NJW Contractors Pty Limited on an indemnity basis.
  • Costs of Brandown application to be paid by Mr Burton and NJW Contractors Pty Limited, taxed in accordance with defended proceedings in General Division.