Menzies v Paccar Financial Pty Ltd [2011] FCA 1161

Menzies v Paccar Financial Pty Ltd [2011] FCA 1161

The contempt applications brought by Mr and Mrs Menzies were hopeless, unsupported by the law or facts, and were brought for an ulterior purpose (to induce the trustees’ resignation under threat of contempt). Indemnity costs were appropriate against the appellants for those motions. However, the applications to remove and replace the trustees, although weak, were not ‘hopeless’ or necessarily abusive and did not justify indemnity costs or personal orders against their solicitor. Similarly, although Mr Hall’s conduct in initiating contempt proceedings was improper, only in relation to the contempt applications was he ordered to indemnify his clients. No indemnity costs or personal costs...

Parties
First Appellant: Ian David Menzies; Second Appellant: Colleen Anne Menzies; Respondent / First Respondent: Paccar Financial Pty Ltd (ACN 005 592 049); Second Respondent (vid 660 of 2010) / Trustee: Paul Andrew Burness; Third Respondent (vid 660 of 2010) / Trustee: Morgan Gerard James Lane; Party Subject to Costs Indemnity Order: T Hall
Jurisdiction
Australia
Judgment Date
21 October 2011
Procedural Posture
Bankruptcy / Costs Applications / Post Judgment; Determination of Costs Applications After Substantive Proceedings and Appeals
Outcome
Costs orders made: Standard and indemnity costs awarded for certain motions; some applications for indemnity costs and personal costs orders dismissed; no order as to certain other costs applications.
Legal Topics
Costs, Indemnity Costs, Contempt of Court, Removal of Trustee, Abuse of Process
Bankruptcy Law Civil Procedure Costs Indemnity Costs Contempt of Court Removal of Trustee Abuse of Process

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 20 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Ian David Menzies

First Appellant

Colleen Anne Menzies

Second Appellant

Paccar Financial Pty Ltd (ACN 005 592 049)

Respondent / First Respondent

Paul Andrew Burness

Second Respondent (vid 660 of 2010) / Trustee

Morgan Gerard James Lane

Third Respondent (vid 660 of 2010) / Trustee

T Hall

Party Subject to Costs Indemnity Order

Procedural Posture

Bankruptcy / Costs Applications / Post Judgment; Determination of Costs Applications After Substantive Proceedings and Appeals

Legal Issues

  1. 1 Whether costs should be awarded on an indemnity basis against the appellants and/or their solicitor in connection with unsuccessful contempt and trustee removal motions in bankruptcy proceedings;
  2. 2 Whether the appellants' motions were brought for an ulterior purpose or constituted an abuse of process;
  3. 3 Whether the conduct of the appellants' solicitor justified the making of a personal costs order against him under court rules.

Ratio Decidendi

The contempt applications brought by Mr and Mrs Menzies were hopeless, unsupported by the law or facts, and were brought for an ulterior purpose (to induce the trustees’ resignation under threat of contempt). Indemnity costs were appropriate against the appellants for those motions. However, the applications to remove and replace the trustees, although weak, were not ‘hopeless’ or necessarily abusive and did not justify indemnity costs or personal orders against their solicitor. Similarly, although Mr Hall’s conduct in initiating contempt proceedings was improper, only in relation to the contempt applications was he ordered to indemnify his clients. No indemnity costs or personal costs...

Court Disposition

Costs orders made: Standard and indemnity costs awarded for certain motions; some applications for indemnity costs and personal costs orders dismissed; no order as to certain other costs applications.

Orders

  • Appellants to pay the trustees' (Paul Andrew Burness and Morgan Gerard James Lane) costs of motions 4–7, notice given 13 July 2010 (VID 495 of 2010).
  • Appellants to pay trustees' costs of motions 2 and 3, notice given 13 July 2010 (VID 495 of 2010), on an indemnity basis.