Touma v Gold Holding Pty Ltd, In the matter of Touma

THE COURT ORDERS THAT:

1. The applicant be granted leave to discontinue the proceedings.
2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT 1 Mr Daniel Touma ("the applicant") applied to set aside a bankruptcy notice. The applicant now seeks the Court's leave to discontinue the proceedings. That is not opposed. However, there is an issue about costs. The issues raised by the applicant in the application will remain undetermined because the proceedings will be discontinued. Nonetheless the applicant has, and did so finally by a payment made on or about 2 August 2004, paid the moneys claimed by the bankruptcy notice, namely $14,343.65. 2 These proceedings have been on foot for some time. There is nothing in the material before me to suggest that the question of costs of these proceedings was addressed in discussions between the parties let alone resolved when the final payment was made. In paying the amounts and thereby satisfying the claim in the bankruptcy notice, the applicant has effectively surrendered to the respondent: see Aussie Red Equipment Pty Ltd v Antsent Pty Ltd [2001] FCA 1641 and ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270. 3 In those circumstances, in my opinion, the respondent is entitled to its costs of the application. In addition the respondent seeks indemnity costs. I am not satisfied that on the material before me such an order should be made. Accordingly, I propose to give the applicant leave to discontinue the proceedings and, secondly, order that the applicant pay the respondent's costs of the proceedings. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.