ABL Nominees Pty Ltd v Trinick (Administrators) (No 2) [2018] FCA 204

ABL Nominees Pty Ltd v Trinick (Administrators) (No 2) [2018] FCA 204

The first respondent, through Mr Trinick, was the main party resisting the application to set aside the Personal Insolvency Agreement, acted unreasonably in defending the proceeding, and did not act prudently and reasonably so as to be entitled to an indemnity. Consequently, the first respondent should pay the applicants' costs of the proceeding and interim application, repay estate funds used for Gretsas & Associates Lawyers, and the applicants' costs should be fixed in a lump sum because the amount could be estimated with reasonable precision and further expense should be avoided.

Jurisdiction
Australia
Judgment Date
02 March 2018
Procedural Posture
Costs and Repayment Application Following Orders Setting Aside a Personal Insolvency Agreement and Making a Sequestration Order / Post Judgment Application for Costs, Lump Sum Costs and Repayment of Funds Withdrawn From the Estate
Outcome
Application granted; costs and repayment orders made against the first respondent.
Legal Topics
['personal Insolvency Agreement' 'sequestration Order' 'controlling Trustee' 'lump Sum Costs' 'trustee Indemnity' 'repayment of Estate Funds']
['bankruptcy' 'insolvency' 'costs'] ['personal Insolvency Agreement' 'sequestration Order' 'controlling Trustee' 'lump Sum Costs' 'trustee Indemnity' 'repayment of Estate Funds']

Case Brief

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Procedural Posture

Costs and Repayment Application Following Orders Setting Aside a Personal Insolvency Agreement and Making a Sequestration Order / Post Judgment Application for Costs, Lump Sum Costs and Repayment of Funds Withdrawn From the Estate

Legal Issues

  1. 1 ["Whether the first respondent should pay the applicants' costs of the proceeding fixed in a lump sum amount of $121,928.98." 'Whether the first respondent should pay to the trustee of the bankrupt estate of David Martin Irvin funds withdrawn from the estate and used to pay the costs, fees or other expenses of Gretsas & Associates Lawyers.' "Whether the first respondent should pay the applicants' costs of the interim application dated 1 June 2017." 'Whether Mr Trinick acted prudently and reasonably in defending the proceeding so as to be entitled to an indemnity.']

Ratio Decidendi

The first respondent, through Mr Trinick, was the main party resisting the application to set aside the Personal Insolvency Agreement, acted unreasonably in defending the proceeding, and did not act prudently and reasonably so as to be entitled to an indemnity. Consequently, the first respondent should pay the applicants' costs of the proceeding and interim application, repay estate funds used for Gretsas & Associates Lawyers, and the applicants' costs should be fixed in a lump sum because the amount could be estimated with reasonable precision and further expense should be avoided.

Court Disposition

Application granted; costs and repayment orders made against the first respondent.

Orders

  • ["The first respondent pay the applicants' costs of the proceeding, fixed in a lump sum amount of $121,928.98." 'Pursuant to the undertaking given by Mr Glenn Douglas Trinick and the orders made by the Court on 21 December 2015, the first respondent pay to Mr Stephen Michell in his capacity as trustee of the...