Culleton v Balwyn Nominees Pty Ltd (No 2) [2017] FCAFC 12

Culleton v Balwyn Nominees Pty Ltd (No 2) [2017] FCAFC 12

Because the authorities establish that it is the usual or standard course for a petitioning creditor's costs of successfully defending an appeal to be taxed and paid out of the bankrupt estate in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth), the respondent's submissions should be accepted and the Full Court's costs order should be varied accordingly.

Jurisdiction
Australia
Judgment Date
10 February 2017
Procedural Posture
Appeal Concerning a Sequestration Order in Bankruptcy / Determination on the Papers of the Respondent's Request to Vary the Full Court Costs Order
Outcome
Order 2 of the Full Court made on 3 February 2017 was varied so that the appeal remained dismissed and the respondent's costs on appeal, including reserved costs, are to be taxed and paid out of the appellant's estate in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth).
Legal Topics
['sequestration Order' 'costs of Petitioning Creditor on Appeal' 'priority Payment of Costs From Bankrupt Estate' 'bankruptcy Act 1966 (cth) S 109(1)(a)']
['bankruptcy and Insolvency' 'costs'] ['sequestration Order' 'costs of Petitioning Creditor on Appeal' 'priority Payment of Costs From Bankrupt Estate' 'bankruptcy Act 1966 (cth) S 109(1)(a)']

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Procedural Posture

Appeal Concerning a Sequestration Order in Bankruptcy / Determination on the Papers of the Respondent's Request to Vary the Full Court Costs Order

Legal Issues

  1. 1 ["Whether Order 2 of the Full Court made on 3 February 2017 should be varied so that the respondent's costs on appeal, including reserved costs, are taxed and paid out of the appellant's estate in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth)."]

Ratio Decidendi

Because the authorities establish that it is the usual or standard course for a petitioning creditor's costs of successfully defending an appeal to be taxed and paid out of the bankrupt estate in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth), the respondent's submissions should be accepted and the Full Court's costs order should be varied accordingly.

Court Disposition

Order 2 of the Full Court made on 3 February 2017 was varied so that the appeal remained dismissed and the respondent's costs on appeal, including reserved costs, are to be taxed and paid out of the appellant's estate in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth).

Orders

  • ["Order 2 of the Full Court made on 3 February 2017 be varied by substituting the following for the order made on 3 February 2017: The appeal be dismissed and the respondent's costs on appeal (including reserved costs) be taxed and paid out of the estate of the appellant in accordance with s 109(1)(a) of the...