Nilant (Trustee) v Macchia

REASONS FOR JUDGMENT THE COURT: 1 This is a notice of motion by Charles Philippe Louis Nilant ("the trustee") filed in Appeal WAG 51 of 1997 seeking an order: "Pursuant to section 7 of the Federal Proceedings (Costs) Act 1981, the Full Court of the Federal Court grants to the appellant to appeal WAG 51 of 1997 a costs certificate in respect of that appeal, the certificate to state that in the opinion of the Full Court it would be appropriate for the Attorney-General to authorise a payment under this Act to the appellant in respect of the costs incurred by the Appellant in relation to that appeal." Section 7 of the Federal Proceedings (Costs) Act 1981 (Cth) ("the Act") provides: "Costs certificates for appellants - Federal appeals 7. (1) Subject to this Act, where: (a) a respondent to a Federal appeal is, in pursuance of an order of a court, required to pay to an appellant any costs (in this section referred to as the 'relevant costs') incurred by the appellant in relation to the appeal; and (b) under subsection 6(1) or (2), the respondent is entitled to apply to the court for a costs certificate in respect of the appeal; the court, on the application of the appellant, may, if it is satisfied that: (c) the respondent is, by reason of lack of means, unable to pay the relevant costs or a part of the relevant costs; (d) the payment of the relevant costs or a part of the relevant costs would cause the respondent undue hardship; or (e) the whereabouts of the respondent are unknown; grant to the appellant a costs certificate in respect of the appeal. (2) The certificate that may be granted under subsection (1) by a court to an appellant to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the appellant in respect of: (a) where paragraph (1)(c) applies - the whole of the relevant costs or that part of the relevant costs that the respondent is unable to pay; (b) where paragraph (1)(d) applies - the whole of the relevant costs or that part of the relevant costs the payment of which would cause the respondent undue hardship; or (c) where paragraph (1)(e) applies - the relevant costs." 2 The circumstances of this application for a costs certificate are somewhat unusual. 3 The appeal the subject of the present application was heard on 14 July 1997 by the Full Court as presently constituted, which ordered on 15 September 1997: "(1) the appeal be allowed; (2) the orders made on 11 April 1997 be set aside and the matter be remitted to Lee J for further consideration; (3) the respondent pay the appellant's costs of the appeal and of the proceedings before Lee J to date." 4 Pursuant to that order, the appellant's costs of the appeal were deemed to have been taxed at $9,000, in accordance with O 62 r 46(3) of the Federal Court Rules. Pursuant to O 62 r 45 by an order entered on 3 March 2000, Mr Macchia, the unsuccessful respondent to the appeal, was ordered to pay to the trustee the sum of $9,000. The costs of the proceedings before Lee J to that date were similarly deemed to have been taxed at $3,600. By order entered also on 3 March 2000, Mr Macchia was ordered to pay to the trustee the sum of $3,600. The amounts owing by way of those costs were not paid by Mr Macchia to the trustee. 5 The trustee obtained the issue by the Official Receiver of a bankruptcy notice against Mr Macchia alleging a debt of $12,600 as a consequence of the costs order of the Full Court in appeal WAG 51 of 1997. 6 After the determination of that appeal, the respondent made a further application to Lee J resulting in a further judgment in favour of Mr Macchia in the year 2000. That judgment was again the subject of a successful appeal by the trustee in Nilant v Macchia [2000] FCA 1528. The trustee's bill of costs in respect of the proceedings before Lee J in the year 2000 was in the amount of $8,158; and his bill of costs in respect of the 2000 appeal $20,598. Those bills of costs have not yet been taxed. 7 After the service of the bankruptcy notice on him, Mr Macchia applied to the Federal Court for orders extending the time for compliance with, and the setting aside of the bankruptcy notice, as well as damages against the trustee. This application was the subject of a judgment by French J in Macchia v Nilant [2001] FCA 7. Insofar as damages were claimed against the trustee under ss 178 and 179 of the Bankruptcy Act 1966 (Cth), that application was dismissed. Mr Macchia commenced proceedings by Writ 1470 of 2001 in the Supreme Court of Western Australia claiming damages against the trustee. 8 In 1998 in the Supreme Court of Western Australia, the trustee had supported an application to have the Public Trustee appointed as administrator of the deceased estate of Mr Macchia's mother, which application was unsuccessfully opposed by the respondent. In 1997 the trustee had sought to have himself appointed as administrator of Mr Macchia's mother's estate. The trustee's costs of those two Supreme Court probate actions were taxed on 10 December 1998 at $2,305.99 and $1,968 respectively. 9 In the bankruptcy proceedings before Lee J in 1997 and 2000, and in the Full Federal Court appeals of 1997 and 2000 from those proceedings, the trustee was represented by Carles Solicitors. In the action in relation to the damages claims against the trustee before French J in the Federal Court and the Supreme Court proceedings in 2001, the trustee was represented by Freehills and subsequently by a firm Pynt McKay, being solicitors engaged by the trustee's professional indemnity insurer. 10 The Full Court as presently constituted on 9 October 2000 granted a costs certificate to Mr Macchia in respect of the 1997 Full Federal Court appeal: see Nilant v Macchia [2000] FCA 1414. The orders the Court made were: