Re Washington, H.J. v. Ex parte Washington, H.J. & Ors [1988] FCA 242

Federal Court of Australia|1988-04-21|Before: Frances J, Pincus J

BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF QUEENSLAND )

RE: HOWARD JOHN WASHINGTON EX PARTE: HOWARD JOHN WASHINGTON FRANCES JAYE WASHINGTON

AUT SE CRT O8 , "ARIA JUDGE MAKING ORDER: PINCUS J. mate eM DATE OF ORDER: 21 APRIL 1988 WHERE MADE: BRISBANE

the summons under s.81 of the Bankruptcy Act 1966 issued at the request of C.S.R. Limited, dated 15 January 1988, be set aside in respect of each of the four applicants; and

the costs of the applicants of and incidental to this application to set the summons aside be taxed and paid by the respondent, C.S.R. Limited.

Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN_THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION

Applicants C.S.R. LIMITED Respondent PINCUS J. 21 APRIL 1988

In this matter I order that the application made on behalf of Frances J. Washington, which has been filed in Court by leave, be treated as if it were also an application by Howard John Washington, Thomas John O'Toole and Ian Robert Skinner. I have

made that order to avoid the necessity of filing multiple

I order that the summons under s.81 of the Bankruptcy Act 1966, issued at the request of C.S.R. Limited, dated 15 February 1988, be set aside in respect of each of the four

applicants. I order that the costs of the applicants of and

incidental to this application to set the summons aside be taxed and paid by the respondent C.3.R. Limited. The remaining question is the costs incurred by the proposed examinees in preparatory work engaged in by Mr Harley in anticipation of the expected examinations which will not, of course, take place. The point is rather an unusual one. It is, I think, correct that as Mr Lobban says, it is not the practice to award costs of lawyers' fees of

Section 81(14), in effect, creates a statutory exception to that, but it does not apply so as to allow costs to be awarded in these circumstances. The question is whether I should apply the practice by analogy in this case in which, because of an

error, the proposed examination will not take place.

It seems to me that I should. The error which has been made is, no doubt, regrettable, that has redounded to the benefit of the proposed examinees. Had the examinations proceeded, they would have incurred more costs, which, had the ordinary practice

I therefore do not propose to allow any further costs than those I have already allowed, that is, the costs relating to the application to set aside. f certify that th - and the / preceding Paces are a treo on, cf rhe re2sons for

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