Charles v Parkinson

REASONS FOR JUDGMENT 1 On 20 October 2000, I dismissed a creditor's petition in so far as it concerned Fiona Parkinson: see [2000] FCA 1467. Mrs Parkinson now pursues an order that Edward Charles and Kathryn Charles ("the petitioning creditors") pay her legal costs. 2 In my judgment of 20 October 2000, I said the following: "The question of the costs of the proceedings is a troubling one. My present, preliminary views are these. Even though Mrs Parkinson has succeeded in resisting a sequestration order being made (and, at least prima facie, she would be entitled to her costs), her success has depended, at least in substantial part, on me accepting that what appeared or purported to be her signature, was a signature placed on the Agreement by her husband. While Mrs Parkinson should not necessarily have visited upon her the consequences of her husband's acts, there is a potential injustice if Mr and Mrs Charles have to pay all or even some of the costs of Mrs Parkinson in these proceedings. The ultimate result has been determined by a combination of two factors. The first is the estate of Mr Parkinson being sequestrated in other proceedings and the second is the finding that Mrs Parkinson had not executed the Agreement (but that her husband may have done so fraudulently) and her initialling of it did not evince an intention to be bound by the guarantee. In the circumstances, my present view is that the appropriate result is that each party should bear their own costs. In expressing this preliminary view I am not intending to disturb any earlier order or agreement concerning costs. However, if either party wishes to make further submissions on the question of costs, they should do so in writing within seven days of the publication of these reasons." 3 Since making those observations written submissions have been filed by counsel for Mrs Parkinson. Submissions were filed yesterday by counsel for the petitioning creditors (dated 30 October 2000) opposing the preliminary view I expressed. 4 Counsel for Mrs Parkinson makes the point that the issues on which Mrs Parkinson succeeded had been identified in the notice of intention to oppose the petition. Moreover the issues raised and determined at the hearing were confined to those adverted to in the notice. It was submitted that because Mrs Parkinson succeeded on those issues then she is entitled to her costs. 5 On reflection, I accept that this is, at least generally, the appropriate approach. I remain concerned that the petitioning creditors have been involved in what have proved to be protracted proceedings. However it must be borne in mind that at least some of their costs have been met by an agreement reached on 16 June 2000 that Mrs Parkinson, or someone on her behalf, would pay the petitioning creditors their costs (in the agreed sum of $2,500) or at least a portion of them, of the proceedings to that point being costs thrown away by the matter not then proceeding. At that stage the petitioning creditors could have endeavoured to settle the matter on the basis that they would not pursue the petition as against Mrs Parkinson. There was no such settlement and the matter was contested at a final hearing. Accordingly, I propose to order that the costs of Mrs Parkinson from 16 June 2000 be paid by the petitioning creditors. I have selected that date because it represents a point when it was clear that Mrs Parkinson alone was contesting the petition and also a point when she was separately represented. By selecting that date I have also endeavoured to strike a fair balance between the interests of Mrs Parkinson and the petitioning creditors. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.