Terry, Maureen v Official Receiver [1998] FCA 1341

Terry, Maureen v Official Receiver [1998] FCA 1341

The Court held that the costs question should be resolved without awaiting possible future s 121 proceedings, because deferring it risked further costs. On balance, the ordinary rule that costs follow the event applied, as the applicant had brought an application to set aside the notice and the Trustee ultimately consented to that relief. The respondent was therefore ordered to pay the applicant's costs of and incidental to the application, including reserved costs, to be taxed if not agreed.

Jurisdiction
Australia
Judgment Date
18 September 1998
Procedural Posture
Application for Costs Consequent Upon the Setting Aside by Consent of a Notice Issued Pursuant to S 139 ZQ of the Bankruptcy Act (cth) 1966 / Costs Determination After Consent Orders Setting Aside the Notice
Outcome
Application for costs allowed; respondent ordered to pay the applicant's costs.
Legal Topics
['bankruptcy Notice Under S 139 Zq' 'application to Set Aside Notice' 'costs' 'costs Follow the Event' 'taxation of Costs']
['bankruptcy' 'civil Procedure'] ['bankruptcy Notice Under S 139 Zq' 'application to Set Aside Notice' 'costs' 'costs Follow the Event' 'taxation of Costs']

Case Brief

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Procedural Posture

Application for Costs Consequent Upon the Setting Aside by Consent of a Notice Issued Pursuant to S 139 ZQ of the Bankruptcy Act (cth) 1966 / Costs Determination After Consent Orders Setting Aside the Notice

Legal Issues

  1. 1 ["Whether the respondent should pay the applicant's costs of and incidental to the application after the notice was set aside by consent." "Whether the applicant's application to set aside the notice was premature because material was not provided to the Trustee before filing." "Whether costs should instead be the respondent's costs or costs in the cause of proposed proceedings under s 121 of the Bankruptcy Act (Cth) 1966."]

Ratio Decidendi

The Court held that the costs question should be resolved without awaiting possible future s 121 proceedings, because deferring it risked further costs. On balance, the ordinary rule that costs follow the event applied, as the applicant had brought an application to set aside the notice and the Trustee ultimately consented to that relief. The respondent was therefore ordered to pay the applicant's costs of and incidental to the application, including reserved costs, to be taxed if not agreed.

Court Disposition

Application for costs allowed; respondent ordered to pay the applicant's costs.

Orders

  • ["The respondent pay the applicant's costs of and incidental to the application including reserved costs, if any, to be taxed if not agreed."]