Cull (Trustee), in the matter of Occhiuto (Bankrupt) v Occhiuto

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. On 15 April 2025 I made orders pursuant to s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of a property in Richmond, New South Wales.[1] I also made the following orders in relation to costs:
   1. The applicant may apply pursuant to r 22.02(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) for an order pursuant to r 22.02(2)(a) of the Rules that the Court set an amount for the applicant's costs of this proceeding, such application to be made by the applicant filing and serving, by no later than 30 April 2025, an affidavit on which the applicant relies for such order.
   2. If by 13 May 2025 the respondents do not file any affidavit in relation to costs in response to any affidavit the applicant may file pursuant to order 11, Judge Manousaridis shall be at liberty to set the applicant's costs pursuant to r 22.02(2)(a) of the Rules, or in the alternative make an order under r 22.02(2)(c) of the Rules referring the costs for taxation under Part 40 of the Federal Court Rules 2011 (Cth).
2. Pursuant to these orders, the applicant (Trustee) filed two affidavits made by his lawyer, Ms Nomikos, one on 9 May 2025, and the other on 13 May 2025, in which she deposes to the costs the Trustee incurred in this proceeding. The respondents have not filed any affidavit in relation to costs. I am therefore at liberty to set the Trustee's costs, or refer the Trustee's costs for taxation under Part 40 of the Federal Court Rules 2011 (Cth).
3. The first question is whether I should set the amount of the Trustee's costs or have those costs referred for taxation. I am satisfied that it would be appropriate that I set the amount because the Trustee has provided all the evidence it would be reasonable for him to provide to enable me to set those costs. That evidence consists of the legal fees that were charged to the Trustee, the basis of charging, and a description of the legal work performed by the Trustee's lawyers, and counsel.
4. The next question is the amount for which I should set the Trustee's costs. The evidence reveals the Trustee's costs, including disbursements and counsel's fees, are as follows:

1. Counsel's fees of $10,636.36 include a 20% "uplift" component. An "uplift fee" is a fee which a client may agree to pay his or her lawyer under a conditional costs agreement.[2] I do not consider it would be appropriate for the Trustee to recover any uplift fee for which he may be liable to pay to counsel. The Trustee should therefore recover counsel's fees exclusive of the 20% uplift fee, namely, $8,863.63.
2. "ECR" stands for "expense recovery charge". Ms Nomikos deposes that this represents "a cost associated with [her law firm's] general administrative costs for tasks such as in-house printing, which are not separately charged". I am not satisfied the ECR can be attributed as a cost associated with the costs the Trustee incurred in this proceeding, and find that it should not be included in the setting of the Trustee's costs.
3. As for the solicitor's fees, I consider that these should be discounted by 25% to represent what I consider would be a fair estimate of the amount the Trustee would recover on a taxation.
4. For these reasons I consider it is appropriate to set the Trustee's costs, and I will order that those costs be set, at $44,607.82 as follows:

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

[1] Cull (Trustee), in the matter of Occhiuto (Bankrupt) v Occhiuto [2025] FedCFamC2G 538.

[2] See s 182 of the Legal Profession Uniform Law (Victoria).