BDT Holdings Pty Ltd v Piscopo

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an application, which is somewhat unusual, by Samuel Piscopo, the trustee in bankruptcy of Terry Hill, the tenth cross-respondent to Mr Piscopo's cross-claim. Mr Piscopo has settled his substantive proceedings the subject of his cross-claim against all but three of the fourteen cross-respondents (namely, Helen Walker, a New Zealand accountant, a New Zealand company associated with her, Nominee Shareholdings Ltd and Mr Hill). He now seeks to discontinue the cross-claim with an order that each of Ms Walker and Mr Hill pay costs of the cross-claim. Mr Piscopo does not seek costs against Nominee Shareholdings. 2 Mr Piscopo is not in a position to prove that Ms Walker has been served with his notice of motion seeking leave to discontinue and that she pay costs, that I directed be filed on 3 December 2010. Since Mr Piscopo cannot prove that Ms Walker has been served with his motion seeking costs against her, I refuse to grant him an order that requires her to pay costs. Mr Piscopo also seeks to proceed with his motion for leave to discontinue against Mr Hill on the basis on which I have outlined. Mr Hill opposes that course. 3 I have been informed from the bar table that it is not known whether Ms Walker is able at the moment to give instructions by reason of her medical condition. Mr Piscopo does not suggest that he is in a position to resolve the proceedings against either Ms Walker or Mr Hill. In those circumstances, I raised with counsel for Mr Piscopo whether he wished to proceed with the motion to discontinue, and, if he did not, I ought to dismiss the cross-claim, including as against Ms Walker, on the basis that he was no longer wishing to prosecute it. Mr Piscopo elected to seek to proceed with his application to discontinue under O 22 r 2(1)(d) of the Rules. Relevantly, O 22 provides: "2 Discontinuance - Form 29 (1) Subject to subrules 2 and 3 a party making a claim for relief may discontinue a proceeding so far as concerns the whole or any part of any claim for relief, by notice in accordance with Form 29: (a) at any time before the directions hearing - without the leave of the Court or the consent of any other party; (b) where after the directions hearing the proceeding continues on pleadings but the pleadings are not closed - without the leave of the Court or the consent of any other party; (c) where judgment has not been entered - with the consent of all the parties; and (d) at any time - with the leave of the Court. ..... Costs (1) A party who discontinues pursuant to paragraph 2 (1) (a) or (b) shall be liable to pay the costs of the other party or parties occasioned by the whole or the relevant part of the proceeding. (2) A party who discontinues under paragraph 2 (1) (c) is liable to pay the costs of the other party or parties occasioned by the whole or the relevant part of the proceeding, unless the terms of the consent provide otherwise." (emphasis added) 4 In the course of argument today, Mr Piscopo sought to rely on the decision of the Federal Magistrates Court in Rose v Piscopo [2010] FMCA 948, which was decided earlier this week on 14 December 2010. There, the trial judge noted that, after he had completed and edited his judgment, the solicitors representing Mr Piscopo had advised the Court that, as a result of a global settlement of all proceedings and claims involving Ms Rose and Mr Piscopo, consent orders disposing of the proceedings involving those two parties had been forwarded to the Court and so that his Honour did not decide those matters. The judgment dealt with, among other things, an application by Mr Hill to set aside an examination summons under s 81 of the Bankruptcy Act 1966 (Cth), which Mr Piscopo had caused to be issued and served on him, and also to have an inquiry into the conduct of Mr Piscopo under s 179 of that Act in relation to his conduct as trustee in bankruptcy, which were both dismissed. Mr Hill was ordered to pay Mr Piscopo's costs of the proceedings before the Federal Magistrates Court on a party/party basis. Mr Piscopo contended that the purpose of the tender was to identify, within the ambit of what might be admissible under s 91 of the Evidence Act 1995 (Cth), the issues before the Federal Magistrates Court and their resolution.