Boensch v Pascoe [2008] FCA 412

Boensch v Pascoe [2008] FCA 412

Mr Pascoe was entitled to costs of defending the primary proceedings, but those costs were incurred in the administration of Mr Boensch's bankrupt estate and should form part of the trustee's administration costs rather than be ordered separately against Mr Boensch. Because Mr Pascoe unsuccessfully sought costs on a different basis after Mr Boensch had indicated he would not oppose an estate-costs order, Mr Pascoe should pay Mr Boensch's costs of the costs application, but only if funds are available in the estate to meet Mr Pascoe's own costs.

Jurisdiction
Australia
Judgment Date
27 March 2008
Procedural Posture
Costs Application in Bankruptcy Proceedings / After Dismissal of Primary Proceedings Seeking Orders Under Ss 178 and 179 of the Bankruptcy Act 1966 (cth)
Outcome
Mr Pascoe's costs of the primary proceedings were ordered to form part of the trustee's administration costs of Mr Boensch's bankrupt estate; Mr Pascoe was ordered to pay Mr Boensch's costs of the costs application only where estate funds are available to meet Mr Pascoe's costs.
Legal Topics
["trustee's Costs" 'administration of Bankrupt Estate' 'costs Discretion' 'party/party Costs']
['bankruptcy' 'costs'] ["trustee's Costs" 'administration of Bankrupt Estate' 'costs Discretion' 'party/party Costs']

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Procedural Posture

Costs Application in Bankruptcy Proceedings / After Dismissal of Primary Proceedings Seeking Orders Under Ss 178 and 179 of the Bankruptcy Act 1966 (cth)

Legal Issues

  1. 1 ["Whether Mr Pascoe's costs of defending the primary proceedings should form part of the trustee's costs of administering Mr Boensch's bankrupt estate or be ordered separately against Mr Boensch." 'Whether Mr Boensch should receive costs of the costs application, and whether that order should be conditional on funds being available in the bankrupt estate.']

Ratio Decidendi

Mr Pascoe was entitled to costs of defending the primary proceedings, but those costs were incurred in the administration of Mr Boensch's bankrupt estate and should form part of the trustee's administration costs rather than be ordered separately against Mr Boensch. Because Mr Pascoe unsuccessfully sought costs on a different basis after Mr Boensch had indicated he would not oppose an estate-costs order, Mr Pascoe should pay Mr Boensch's costs of the costs application, but only if funds are available in the estate to meet Mr Pascoe's own costs.

Court Disposition

Mr Pascoe's costs of the primary proceedings were ordered to form part of the trustee's administration costs of Mr Boensch's bankrupt estate; Mr Pascoe was ordered to pay Mr Boensch's costs of the costs application only where estate funds are available to meet Mr Pascoe's costs.

Orders

  • ["Mr Pascoe's costs of defending the primary proceedings assessed on a party/party basis, are to form part of the trustee's costs of the administration of the bankrupt estate of Mr Boensch;" "Mr Pascoe is to pay Mr Boensch's costs of the costs application but only where funds are available in Mr Boensch's bankrupt...