Div 15Costs.

Division 15.—Costs. Awarding costs. 110.—(1.) The Court in awarding costs may direct that the costs of any matter or application shall be taxed and paid as between party and party or as between solicitor and client, or that full costs, charges, and expenses shall be allowed, or the Court may fix a sum to be paid in lieu of taxed costs. (2.) In the absence of any express direction, costs of an opposed motion shall follow the event, and shall be taxed as between party and party. (3.) Where an action is brought against an Official Receiver or trustee in bankruptcy as representing the estate of the debtor, or where an Official Receiver or trustee in bankruptcy is made a party to a cause or matter, on the application of any other party thereto, he shall not be personally liable for costs unless the Court in which the action is brought otherwise directs. (4.) Where forms in the schedules to these Rules are applicable, any costs occasioned by the use of any other or more prolix forms shall, unless the Court otherwise directs, be borne by or disallowed to the party using the other or more prolix forms. Orders to be sealed, signed and filed. 111. Every order for payment of money or costs, or either of them, shall be sealed, and signed by the Registrar, and shall be forthwith filed with the proceedings. Taxation of costs. 112. The costs directed by any order to be paid shall be taxed on production of the order or an office copy of the order, and the allocatur shall be signed and dated by the Taxing Officer, who shall be the prescribed officer for the purposes of section 136 of the Act. Bills to be taxed. 113. The bills to be taxed shall be bills of costs, charges, fees and disbursements in matters under the Act. Scales of costs and charges. 114. The scales of costs set forth in the Second Schedule to these Rules, and the regulations contained in the scales, shall, subject to these Rules, apply to the taxation and allowance of costs and charges, in all proceedings under the Act and these Rules. Re-taxation of coats when assets realize more than certified amounts. 115. Costs and charges in respect to the statement of affairs shall be allowed on the scale prescribed in the Second Schedule to these Rules. Solicitor’s costs in case of petition by debtor. 116.—(1.) The solicitor in the matter of a bankruptcy petition presented by the debtor against himself shall, in his bill of costs, give credit for such sum or security (if any) as he has received from the debtor or any other person as a deposit on account of the costs and expenses to be incurred in and about the filing and prosecution of the petition; and the amount of any such deposit shall be noted by the taxing officer upon the allocatur issued for the costs, and if the amount received from the debtor or other person exceed the amount of the taxed costs, the solicitor shall pay the balance to the Official Receiver or trustee. (2.) The bill of costs and credit shall be verified by affidavit. Costs paid otherwise than out of estate. 117. When a bill of costs is taxed under any special order of the Court, and it appears by the order that the costs are to be paid otherwise than out of the estate of the bankrupt, the taxing officer shall specially note upon the allocatur by whom, or the manner in which, the costs are to be paid. Bills of costs to be filed. 118. Upon the taxation of any bill of costs, charges, or expenses being completed, the taxing officer shall forthwith file the bill with the proceedings in the matter, and shall thereupon issue to the person presenting the bill for taxation his allocatur, or certificate of taxation, which shall be in Form 148 or 149. Certificate of employment. No. 37 1924 s. 136. 119. Before taxing the bill or charges of any solicitor, manager, accountant, auctioneer, broker, or other person employed by an Official Receiver or trustee, the Taxing Officer shall require a certificate in writing, signed by the Official Receiver or trustee, as the case may be, to be produced to him, setting forth whether any, and if so what, special terms of remuneration have been agreed to, and in the case of the bill of costs of a solicitor, a copy of the resolution or other authority sanctioning the employment. Sheriff’s costs. No. 37 1924 s. 93 (1). 120. In any case in which, pursuant to sub-section (1.) of section 93 of the Act, a sheriff is required to deliver goods (including money) to an Official Receiver or trustee, such sheriff shall, without delay, bring in his bill of costs for taxation, which shall be taxed by the taxing officer of the Court having jurisdiction in the bankruptcy; and unless the bill of costs is brought in for taxation within fourteen days from the date when the sheriff makes the delivery, the Official Receiver or trustee may decline to pay it. Taxation of sheriff’s costs after deduction. 121.—(1.) If the Official Receiver or trustee, in writing, requires any costs which a sheriff has deducted under sub-section (2.) of section 93 of the Act to be taxed, the sheriff shall, within seven days from the date of the request, bring in those costs for taxation, and those costs shall be taxed by the taxing officer of the Court having jurisdiction in the bankruptcy. (2.) Any amount disallowed on the taxation shall forthwith be paid over by the sheriff to the Official Receiver or trustee, as the case requires. Notice of appointment. 122. Every person whose bill or charges is or are to be taxed shall in all cases give to the Official Receiver and to the trustee (if any) not less than seven days’ notice of the appointment to tax the bill or charges. Lodgment of bill. 123.—(1.) The bill or charges, if incurred prior to the appointment of a trustee, shall be lodged with the Official Receiver, and if incurred after the appointment of a trustee, shall be lodged with the trustee three clear days before the application for the appointment to tax the bill or charges is made, and the trustee shall forthwith lodge it with the Official Receiver. (2.) The Official Receiver shall forthwith, on receiving notice of taxation, lodge the bill or charges with the proper taxing officer. (3.) The Official Receiver shall call the attention of the taxing officer to any items which, in his opinion, ought to be disallowed or reduced. Copy of bill. 124. Every person whose bill or charges is or are to be taxed shall, on application either of the Official Receiver or the trustee, furnish a copy of his bill or charges so to be taxed, on payment at the rate of 4d. per folio, which payment may be charged to the estate. Application for costs. 125. Where any party to, or person affected by, any proceeding desires to make an application for an order that he be allowed his costs, or any part of them, incident to the proceeding, and the application is not made at the time of the proceeding— (a) the party or person shall serve notice of his intended application on the Official Receiver, and, if a trustee has been appointed, on the trustee; (b) the Official Receiver and trustee may appear on the application and object thereto; (c) no costs of or incidental to the application shall be allowed to the applicant, unless the Court is satisfied that the application could not have been made at the time of the proceeding. Review of taxation by Registrar. 126.—(1.) Where any bill of costs, charges, fees, or disbursements of any solicitor, manager, accountant, auctioneer, broker, or other person have been taxed, the Official Receiver or trustee or other person interested may require the taxation to be reviewed by the Registrar. (2.) In any case in which the Official Receiver, trustee or other person requires a review of taxation in pursuance of the last preceding sub-rule he shall give notice to the person whose bill has been taxed, and shall apply to the Registrar to appoint a time for the review of the taxation, and thereupon the Registrar shall appoint a time for the review of, and shall review, the taxation. (3.) The Official Receiver, trustee or other person shall give to the person whose bill of costs is to be reviewed notice of the time appointed for the review. (4.) The Official Receiver or trustee may appear upon the review of the taxation; and if, upon the review of taxation, the bill is allowed at a lower sum than the sum allowed upon the previous taxation, the amount disallowed shall (if the bill has been paid) be repaid to the Official Receiver, or the trustee, or other person entitled thereto. (5.) The certificate of the Registrar shall in every case of a review by him under this rule be a sufficient authority to entitle the person to whom the amount disallowed ought to be repaid to demand the amount from the person liable to repay it. (6.) There shall be allowed to the person whose bill is reviewed such costs of and incidental to his appearance on the review as the Registrar thinks proper, and those costs shall be paid to that person out of the estate: Provided that the costs of the attendance of a principal shall not be allowed if in the opinion of the Registrar he could have been sufficiently represented at less expense by his agent. Priority of costs and charges payable out of estate. 127. The assets in every matter remaining, after payment of the actual expenses incurred in realizing any of the assets of the debtor, shall, subject to any order of the Court, be liable to the following payments, which shall be made in the following order of priority, namely:— (a) the actual expenses incurred by the Official Receiver in protecting the property or assets of the debtor, or any part thereof, and any expenses or outlay incurred by him or by his authority in carrying on the business of the debtor: (b) the fees, percentages, and charges payable under Table B of the Scale of Official Fees and Percentages in the Third Schedule; and any other fees payable to, or costs, charges, and expenses incurred or authorized by the Official Receiver ; (c) the deposit or deposits lodged by the petitioning creditor pursuant to these Rules; (d) the deposit or deposits lodged on any application for the appointment of an Interim Receiver; (e) the remuneration of the special manager (if any); (f) the remuneration and charges of the person (if any) appointed to assist the debtor in the preparation of his statement of affairs; (g) any allowance made to the debtor by the Official Receiver; (h) the taxed costs of the petitioning creditor; (i) the remuneration of the trustee; (j) the taxed charges of any shorthand writer appointed by the Court; (k) the trustee’s necessary disbursements other than actual expenses of realization; (l) the costs of any person properly employed by the trustee with the sanction of the Official Receiver; (m) any allowance made to the debtor by the trustee with the sanction of the creditors by resolution at any general meeting, or the Committee of Inspection or the Court; and (n) the actual out-of-pocket expenses necessarily incurred by the Committee of Inspection, subject to the approval of the Official Receiver. Disallowance of costs of unnecessary petition. 128. In any case in which, after a bankruptcy petition has been presented by a creditor against a debtor, and before the hearing of the petition, the debtor files a petition, and a sequestration order is made on the petition of the debtor, unless in the opinion of the Court the estate has benefited thereby, or there are special circumstances which make it just that the costs should be allowed, no costs shall be allowed to the debtor or his solicitor out of the estate, and the sequestration order shall be deemed to have been made on the petition of the petitioning creditor, and the costs of his petition shall be allowed the petitioning creditor. Apportionment of costs in case of partnership. 129. In the case of a bankruptcy petition against a partnership, the costs payable out of the estates incurred up to and inclusive of the sequestration order shall be apportioned between the joint and separate estates in such proportions as the Official Receiver in his discretion determines. Costs out of joint or separate estates. 130.—(1.) Where the joint estate of any co-debtors is insufficient to defray any costs or charges properly incurred prior to the appointment of the trustee, the Official Receiver may pay or direct the trustee to pay the costs or charges out of the separate estates of the co-debtors, or one or more of them, in such proportions as in his discretion the Official Receiver thinks fit. (2.) The Official Receiver may also, as in his discretion he thinks fit, pay or direct the trustee to pay any costs or charges properly incurred, prior to the appointment of the trustee, for any separate estate out of the joint estate or out of any other separate estate, and any part of the costs or charges of the joint estate incurred prior to the appointment of the trustee which affects any separate estate out of that separate estate. (3.) Where the joint estate of any co-debtors is insufficient to defray any costs or charges properly incurred after the appointment of the trustee, the trustee may, subject to sub-rule (5.) of this rule, pay the costs or charges out of the separate estates of the co-debtors, or one or more of them. (4.) The trustee may, subject to the next succeeding sub-rule, pay any costs or charges properly incurred for any separate estate, after his appointment, out of the joint estate, and any part of the costs or charges of the joint estate incurred after his appointment which affects any separate estate out of that separate estate. (5.) No payment under the last preceding sub-rule shall be made out of a separate estate or joint estate by a trustee without the consent by resolution at any general meeting of the creditors of the estate out of which the payment is intended to be made, or, if the creditors withhold, refuse, or otherwise fail to give their consent, without an order of the Court.