Draper v Official Trustee in Bankruptcy (No 2) [2006] FCAFC 194

Draper v Official Trustee in Bankruptcy (No 2) [2006] FCAFC 194

The majority held that there should be no order for costs of the appeal because the Drapers succeeded in part and the time occupied on issues won by the Official Trustee could fairly be set off against the time occupied on issues won by the Drapers. As to first instance costs, there should be no order between the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
22 December 2006
Procedural Posture
Appeal From the Federal Magistrates Court of Australia / Costs Determination After Appeal Allowed in Part and Remitted for a New Trial on Limited Issues
Outcome
Costs orders made by majority; Besanko J dissented in part as to the Official Trustee's entitlement to costs.
Legal Topics
['costs of Appeal' 'costs at First Instance' 'partial Success on Appeal' 'bankrupt Estate Administration' 'remittal for New Trial']
['bankruptcy' 'civil Procedure' 'costs' 'appellate Procedure'] ['costs of Appeal' 'costs at First Instance' 'partial Success on Appeal' 'bankrupt Estate Administration' 'remittal for New Trial']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Appeal From the Federal Magistrates Court of Australia / Costs Determination After Appeal Allowed in Part and Remitted for a New Trial on Limited Issues

Legal Issues

  1. 1 ['Whether there should be costs orders for the appeal after the Drapers succeeded in part.' 'Whether costs of the proceedings before the Federal Magistrates Court should be ordered as between the Drapers and the Official Trustee in Bankruptcy.' 'Whether costs of the proceedings before the Federal Magistrates Court should be ordered as between the Drapers and Bruce James Carter as trustee.']

Ratio Decidendi

The majority held that there should be no order for costs of the appeal because the Drapers succeeded in part and the time occupied on issues won by the Official Trustee could fairly be set off against the time occupied on issues won by the Drapers. As to first instance costs, there should be no order between the Drapers and Mr Carter, but the Drapers should pay one half of the Official Trustee's costs because significant allegations against her and the annulment claim were rejected, while the other half should be reserved for the Federal Magistrate rehearing the remaining issues.

Court Disposition

Costs orders made by majority; Besanko J dissented in part as to the Official Trustee's entitlement to costs.

Orders

  • ['Each party bear his or her costs of the appeal.' 'Keith Lawrence Draper and Barbara Olive Draper pay to the Official Trustee in Bankruptcy one half of the costs of the Official Trustee in Bankruptcy in the proceedings before the Federal Magistrates Court.' 'The other half of those costs be reserved to the Federal...