Ganesh v Dobrowolski

1. The appellant pay the first respondent's and the second respondent's costs of and incidental to the appeal, such costs to be determined in accordance with Part 40 of the Federal Court Rules 2011 and to be paid from the bankrupt estate of Anandavalli Ganesh. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MOSHINSKY J: 1 On 6 August 2021, I gave judgment in this appeal: Ganesh v Dobrowolski [2021] FCA 909. I decided that the appeal should be dismissed. These reasons deal with the issue of costs. They should be read together with the reasons for judgment of 6 August 2021. I will adopt the abbreviations used in the 6 August 2021 reasons. 2 Pursuant to the orders made on 6 August 2021, each of the parties has filed a written submission on costs. Mr Dobrowolski submits that costs should follow the event. He submits that there are no special circumstances in this case to displace the usual practice that Mr Dobrowolski as the successful party should have his costs. He seeks an order that the costs be paid out of the bankrupt's estate: see, eg, Lawman v Queensland Building Services Authority (No 2) [2000] FCA 174. 3 The Trustees also seek an order for costs on the basis of the general rule that costs follow the event. They note that r 13.01(1) of the Federal Court (Bankruptcy) Rules 2016 provides that, subject to Div 13.2, a person who is entitled to costs in a proceeding to which the Bankruptcy Act 1966 (Cth) applies is entitled to costs in accordance with Pt 40 of the Federal Court Rules 2011 unless the Court otherwise orders. The Trustees also submit that such costs should be costs in the bankruptcy. 4 Ms Ganesh submits that no costs are payable by her to the respondents. Her written submission repeats a number of her substantive allegations from the appeal itself. 5 The principles regarding the award of costs are well established. Ordinarily, a successful party is entitled to an award of costs in its favour in the absence of special circumstances justifying some other order: see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11] per Black CJ and French J; Oshlack v Richmond River Council (1998) 193 CLR 72 at [67] per McHugh J, at [134] per Kirby J. 6 In the present case, none of the matters referred to in Ms Ganesh's submissions provides a basis to depart from the usual order as to costs. Accordingly, I will make an order that Ms Ganesh pay Mr Dobrowolski's and the Trustees' costs of and incidental to the appeal. 7 Consistently with r 13.01(1) of the Federal Court (Bankruptcy) Rules 2016, I will order that these costs be determined in accordance with Pt 40 of the Federal Court Rules 2011. It does not appear necessary to include the words "as taxed or agreed" (as proposed by Mr Dobrowolski) as this matter is covered by the reference to Pt 40 of the Federal Court Rules 2011: see rr 40.12 and 40.14 of the Federal Court Rules 2011. Further, it is appropriate that the costs be paid from the bankrupt estate of Ms Ganesh. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky.