Re Terry, W.A. & Anor v Ex parte Prentice, M.W. & Anor [1994] FCA 1031

Re Terry, W.A. & Anor v Ex parte Prentice, M.W. & Anor [1994] FCA 1031

Mrs Terry was entitled to an order for only 50 per cent of her costs because she succeeded in having the s 77C notice set aside insofar as it required production of documents but failed insofar as it required her attendance for examination. As between the respondents, the trustee bore the greater responsibility because he initiated the request for the notice, but the Official Receiver also bore responsibility because he issued a notice that was defective on its face and exposed Mrs Terry to potential penalties; accordingly the trustee was to bear two-thirds and the Official Receiver one-third of the awarded costs.

Jurisdiction
Australia
Judgment Date
09 December 1994
Procedural Posture
Bankruptcy Costs Determination / Determination of Costs After Judgment on Application to Set Aside Notice Under S 77 C of the Bankruptcy Act 1966
Outcome
The respondents were ordered to pay 50 per cent of the applicant's costs, apportioned between themselves as two-thirds to the first respondent and one-third to the second respondent.
Legal Topics
['notice Under S 77 C of the Bankruptcy Act 1966' 'production of Documents' 'attendance for Examination' 'costs After Partial Success' 'responsibility for Defective Statutory Notice']
['bankruptcy' 'costs'] ['notice Under S 77 C of the Bankruptcy Act 1966' 'production of Documents' 'attendance for Examination' 'costs After Partial Success' 'responsibility for Defective Statutory Notice']

Case Brief

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Procedural Posture

Bankruptcy Costs Determination / Determination of Costs After Judgment on Application to Set Aside Notice Under S 77 C of the Bankruptcy Act 1966

Legal Issues

  1. 1 ['Whether the applicant, having succeeded in setting aside the notice insofar as it called for production of documents but failed insofar as it required attendance for examination, should receive costs.' 'How the costs awarded to the applicant should be borne as between the trustee who requested the notice and the Official Receiver who issued it.']

Ratio Decidendi

Mrs Terry was entitled to an order for only 50 per cent of her costs because she succeeded in having the s 77C notice set aside insofar as it required production of documents but failed insofar as it required her attendance for examination. As between the respondents, the trustee bore the greater responsibility because he initiated the request for the notice, but the Official Receiver also bore responsibility because he issued a notice that was defective on its face and exposed Mrs Terry to potential penalties; accordingly the trustee was to bear two-thirds and the Official Receiver one-third of the awarded costs.

Court Disposition

The respondents were ordered to pay 50 per cent of the applicant's costs, apportioned between themselves as two-thirds to the first respondent and one-third to the second respondent.

Orders

  • ["THAT the respondents pay 50% of the applicant's costs." 'THAT as between themselves, the first respondent bear two-thirds of those costs and the second respondent bear one third of those costs.']