Campbell v van der Velde as trustee of the bankrupt estate of Marilyn Anne Rowan, in the matter of Rowan (No 2) [2020] FCA 823

Campbell v van der Velde as trustee of the bankrupt estate of Marilyn Anne Rowan, in the matter of Rowan (No 2) [2020] FCA 823

Although applicants would have been better off accepting Mrs Rowan's earlier offers, those offers did not entitle the trustee to resist an order for costs against him because (a) the trustee adopted significantly different positions to Mrs Rowan and did not repeat her offers, and (b) only the trustee's own offer of 15 August 2016 was relevant, and it was not bettered. Neither parties' failure to file genuine steps statements was material. Due to inefficiencies on all sides, it was appropriate the trustee pay 90% of the applicants' party-party costs, to be determined by a Registrar.

Jurisdiction
Australia
Judgment Date
12 June 2020
Procedural Posture
Application/cross Claim (bankruptcy) / Costs Determination After Substantive Judgment
Outcome
Respondent ordered to pay 90% of applicants' costs, to be assessed on a party and party basis; quantification to be determined by Registrar.
Legal Topics
['costs Orders' 'offers of Compromise' 'trustee Duties' 'joint Venture' 'constructive Trust']
['bankruptcy' 'civil Procedure'] ['costs Orders' 'offers of Compromise' 'trustee Duties' 'joint Venture' 'constructive Trust']

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Procedural Posture

Application/cross Claim (bankruptcy) / Costs Determination After Substantive Judgment

Legal Issues

  1. 1 ["Whether the Court should depart from the ordinary rule that costs follow the event in light of prior offers and the parties' conduct" 'Whether trustee in bankruptcy may rely on offers made by the bankrupt prior to their appointment to affect costs' 'Whether the conduct of the parties, including failure to make or accept reasonable settlement offers, affects costs discretion']

Ratio Decidendi

Although applicants would have been better off accepting Mrs Rowan's earlier offers, those offers did not entitle the trustee to resist an order for costs against him because (a) the trustee adopted significantly different positions to Mrs Rowan and did not repeat her offers, and (b) only the trustee's own offer of 15 August 2016 was relevant, and it was not bettered. Neither parties' failure to file genuine steps statements was material. Due to inefficiencies on all sides, it was appropriate the trustee pay 90% of the applicants' party-party costs, to be determined by a Registrar.

Court Disposition

Respondent ordered to pay 90% of applicants' costs, to be assessed on a party and party basis; quantification to be determined by Registrar.

Orders

  • ["The respondent is to pay 90% of the applicants' costs of the proceedings on a party and party basis." 'The applicants be awarded a lump sum for their costs in an amount to be determined by a Registrar of the Court.' 'By 4.00 pm Friday, 26 June 2020, the applicants are to file and serve any evidence upon which they...