Fidelity Capital (Australia) Pty Ltd v Delic (No 2) [2022] FCA 123

Fidelity Capital (Australia) Pty Ltd v Delic (No 2) [2022] FCA 123

Given the appellant’s only partial success on discrete issues and the reduced proof of debt admitted, it is appropriate to make no order as to costs of the appeal (save for costs thrown away by reason of the first respondent’s conduct) and to award only one-third of the appellant’s costs in the proceeding below.

Parties
Appellant: Fidelity Capital (Australia) Pty Ltd; First Respondent: Damir Jakov Delic; Second Respondent: Michael Slaven as Trustee in the Bankrupt Estate of Damir Jakov Delic
Jurisdiction
Australia
Judgment Date
18 February 2022
Procedural Posture
Appeal / Final Orders Following Judgment on Appeal
Outcome
Appeal allowed in part; orders below set aside in part; proof of debt admitted for $97,847.33; costs apportioned as specified; otherwise appeal dismissed.
Legal Topics
Appeal, Costs, Proof of Debt, Orders on Appeal
Bankruptcy and Insolvency Appeal Costs Proof of Debt Orders on Appeal

Case Brief

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Parties

Fidelity Capital (Australia) Pty Ltd

Appellant

Damir Jakov Delic

First Respondent

Michael Slaven as Trustee in the Bankrupt Estate of Damir Jakov Delic

Second Respondent

Procedural Posture

Appeal / Final Orders Following Judgment on Appeal

Legal Issues

  1. 1 What are the appropriate final orders following partial success on appeal, including as to costs?
  2. 2 Whether the proof of debt should be admitted and in what amount?
  3. 3 Whether the costs orders below should be set aside and replaced?

Ratio Decidendi

Given the appellant’s only partial success on discrete issues and the reduced proof of debt admitted, it is appropriate to make no order as to costs of the appeal (save for costs thrown away by reason of the first respondent’s conduct) and to award only one-third of the appellant’s costs in the proceeding below.

Court Disposition

Appeal allowed in part; orders below set aside in part; proof of debt admitted for $97,847.33; costs apportioned as specified; otherwise appeal dismissed.

Orders

  • Appeal allowed on grounds 1A, 8, and 13 in part ($2,682.33); otherwise dismissed.
  • Orders dated 5 February 2021 below set aside.