McDonald v Young (No 2) [2012] FCAFC 161

FEDERAL COURT OF AUSTRALIA

McDonald v Young (No 2) [2012] FCAFC 161 Citation: McDonald v Young (No 2) [2012] FCAFC 161

Appeal from: Young, in the matter of Macryannis [2011] FCA 1272 and Young, in the matter of Macryannis (No 2) [2012] FCA 175

Parties: GEOFFREY DAVID MCDONALD v KATHRYN ANNE YOUNG

File number: NSD 2135 of 2011

Judges: EMMETT, MIDDLETON AND ROBERTSON JJ

Date of judgment: 16 November 2012

Date of last submissions: 1 November 2012

Legislation: Federal Proceedings (Costs) Act 1981 (Cth) s 6(1) Federal Court Rules 1979 r 62.15 Federal Court Rules 2011 rr 40.03, 40.04

Place: Sydney

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 9

Solicitor for appellant: Pure Legal

Solicitor for the respondent: Rockliffs Solicitors

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2135 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN: GEOFFREY DAVID MCDONALD

Appellant

AND: KATHRYN ANNE YOUNG

Respondent

JUDGES: EMMETT, MIDDLETON AND ROBERTSON JJ DATE OF ORDER: 16 NOVEMBER 2012 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be upheld in part. 2. Orders 4, 5 and 8 made by the primary judge in proceeding NSD 1955 of 2006 on 8 November 2011 be varied as follows: a) in Order 4, the words "and without a deduction for costs, expenses or remuneration whether or not previously deducted" be deleted and replaced with the words "after deducting costs and expenses and remuneration determined in accordance with Order 7"; b) in Order 5, the word "otherwise" be inserted before the word "dismissed", such that the order will read "The Interim Application filed on 3 December 2009 by Geoffrey David McDonald as Trustee of the Bankrupt Estate of the late Christopher John Macryannis be otherwise dismissed"; and c) in Order 8, the words "only out of the divisible assets of the Bankrupt Estate of the late Christopher John Macryannis" be deleted and replaced with the words "out of the Exempt Assets", such that the order will read "Any payment to the Trustee, Geoffrey David McDonald of costs incurred and remuneration in respect of dealing with exempt assets be paid out of the Exempt Assets". 3. The assets of the Chris Macryannis Family Trust be treated as Exempt Assets for the purpose of those orders. 4. The respondent pay 50 percent of the appellant's costs of the appeal, as agreed or taxed, plus disbursements, but excluding the costs of the further written submissions filed after the conclusion of the oral hearing on 11 May 2012. 5. There be no order as to costs in relation to the appellant's application filed on 28 May 2010 to set aside subpoenas and a notice to produce issued by the respondent. 6. The respondent be granted a costs certificate in respect of the appeal under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). THE COURT DECLARES THAT: 7. The costs incurred by the appellant and the remuneration payable to the appellant, in relation to the Exempt Assets, include remuneration and costs in relation to the appellant's application, in so far as it related to determining the persons entitled to distribution of the proceeds of the realisation of the Exempt Assets, but not otherwise. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.