Whiteman v Deputy Commissioner of Taxation

1. The respondent's costs of the appeal, including reserved costs, are to be taxed and paid out of the estate of the appellant in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHEELAHAN J: 1 I gave judgment in this appeal on 22 August 2022: Whiteman v Deputy Commissioner of Taxation [2022] FCA 975. I dismissed the appeal, with the consequence that the appellant's estate remains subject to the sequestration order that was affirmed on review by the primary judge. Upon giving judgment, I understood counsel for the appellant to accept that costs should follow the event. However, counsel for both parties sought an opportunity to make written submissions to the court on the question whether the appellant should pay the costs of the appeal personally, or whether the respondent's costs of the appeal should be paid out of the estate of the appellant in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth). For this purpose, I reserved the question of costs of the appeal, to be determined on the papers. 2 Counsel for both parties submitted, by reference to authority, that the standard course is that the costs of a successful respondent on an appeal such as the present should be paid out of the appellant's estate. Those submissions were supported by the decision of the Full Court in Culleton v Balwyn Nominees Pty Ltd (No 2) [2017] FCAFC 12 (Allsop CJ, Dowsett and Besanko JJ). I accept the parties' submissions. Accordingly, the order of the court as to costs will be - The respondent's costs of the appeal, including reserved costs, are to be taxed and paid out of the estate of the appellant in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth). I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Wheelahan.