Re Kukas, Juraj (George); Ex Parte Morton, Robert William [1997] FCA 554

Re Kukas, Juraj (George); Ex Parte Morton, Robert William [1997] FCA 554

The Court was not persuaded that special circumstances justified indemnity or solicitor-client costs. The deficiency in the material supporting the s. 81 summons became clear only after detailed argument, there was no suggestion that the Trustee acted for an ulterior purpose rather than the perceived interests of creditors, the relevant Bankruptcy Rules had not previously been judicially expounded except in a simpler case, and the Trustee had the benefit of a Registrar's discretion in his favour. Costs were therefore ordered on the usual party and party basis.

Jurisdiction
Australia
Judgment Date
26 June 1997
Procedural Posture
Bankruptcy Proceeding Concerning Summons Under S. 81(1) of the Bankruptcy Act 1966 / Reasons for Judgment on Costs After Order Setting Aside Summons
Outcome
Applicant awarded costs on the usual party and party basis; application for solicitor-client or indemnity costs refused.
Legal Topics
['summons Under S. 81(1) of the Bankruptcy Act 1966' 'party and Party Costs' 'solicitor Client or Indemnity Costs' 'costs Discretion Under S. 43 of the Federal Court of Australia Act 1976']
['bankruptcy' 'civil Procedure' 'costs'] ['summons Under S. 81(1) of the Bankruptcy Act 1966' 'party and Party Costs' 'solicitor Client or Indemnity Costs' 'costs Discretion Under S. 43 of the Federal Court of Australia Act 1976']

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Procedural Posture

Bankruptcy Proceeding Concerning Summons Under S. 81(1) of the Bankruptcy Act 1966 / Reasons for Judgment on Costs After Order Setting Aside Summons

Legal Issues

  1. 1 ["Whether the applicant's costs of the application to set aside the summons should be taxed as between party and party or on a solicitor-client or indemnity basis." 'Whether special circumstances justified departure from the usual order for party and party costs.']

Ratio Decidendi

The Court was not persuaded that special circumstances justified indemnity or solicitor-client costs. The deficiency in the material supporting the s. 81 summons became clear only after detailed argument, there was no suggestion that the Trustee acted for an ulterior purpose rather than the perceived interests of creditors, the relevant Bankruptcy Rules had not previously been judicially expounded except in a simpler case, and the Trustee had the benefit of a Registrar's discretion in his favour. Costs were therefore ordered on the usual party and party basis.

Court Disposition

Applicant awarded costs on the usual party and party basis; application for solicitor-client or indemnity costs refused.

Orders

  • ['That the costs of the application herein dated 13 December 1996 (including any reserved costs) be taxed as between party and party and paid by the respondent Trustee.']