Australia and New Zealand Banking Group Ltd v Pandher [2011] NSWSC 1462

Australia and New Zealand Banking Group Ltd v Pandher [2011] NSWSC 1462

The trustee, having elected to proceed with the cross-claim, and having caused the third cross-defendant to incur costs, is liable for those costs notwithstanding the reasons for later abandoning the claim. There is no good reason advanced by the trustee to depart from the established principle that a trustee in bankruptcy who prosecutes or defends a claim stands in the place of the bankrupt as to liability for costs incurred after the election to proceed.

Parties
Applicant: Michael Gregory Jones; Third Cross Defendant: City Plan Services Pty Ltd
Jurisdiction
Australia
Judgment Date
09 December 2011
Procedural Posture
Costs Application on Cross Claim in Civil Proceedings / Post Hearing; Final Costs Orders
Outcome
Orders as to costs made; costs of Cross-Claim apportioned between bankrupts and trustee according to date.
Legal Topics
Costs, Bankruptcy, Trustees Liability for Costs
Civil Procedure Costs Bankruptcy Trustees Liability for Costs

Case Brief

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Parties

Michael Gregory Jones

Applicant

City Plan Services Pty Ltd

Third Cross Defendant

Procedural Posture

Costs Application on Cross Claim in Civil Proceedings / Post Hearing; Final Costs Orders

Legal Issues

  1. 1 Whether the trustee in bankruptcy should be liable for costs after electing to prosecute cross-claim and subsequently abandoning it.
  2. 2 Whether reasons for trustee's abandonment are relevant to liability for costs.

Ratio Decidendi

The trustee, having elected to proceed with the cross-claim, and having caused the third cross-defendant to incur costs, is liable for those costs notwithstanding the reasons for later abandoning the claim. There is no good reason advanced by the trustee to depart from the established principle that a trustee in bankruptcy who prosecutes or defends a claim stands in the place of the bankrupt as to liability for costs incurred after the election to proceed.

Court Disposition

Orders as to costs made; costs of Cross-Claim apportioned between bankrupts and trustee according to date.

Orders

  • The Second and Third Defendants are to pay the Third Cross-Defendant's costs of the Cross-Claim up to and including 18 August 2011.
  • Thereafter, the Trustee Michael Jones, is to pay the Third Cross-Defendant's costs of the Cross-Claim.