Re Burton, Leslie Ross Ex Parte Wily, Hugh Jenner Brandon Pty Ltd NJW Contractors Pty Ltd [1995] FCA 844

IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ) BANKRUPTCY DISTRICT OF THE STATE ) No NB 2172 of 1993 OF NEW SOUTH WALES ) RE: LESLIE ROSS BURTON of 25 Overett Avenue Kemps Creek in the State of New South Wales EX PARTE: HUGH JENNER WILY Applicant/First Cross-Respondent BRANDOWN PTY LIMITED ACN 003 830 304 First Respondent NJW CONTRACTORS PTY LIMITED ACN 000 730 192 Second Respondent/Cross-Claimant PATRICK JAMES HALLINAN MAX DAVID RODGERS and GEORGE FRANK RODGERS Third Respondent/ Second Cross-Respondent AND EX PARTE: LESLIE ROSS BURTON Applicant HUGH JENNER WILY Respondent Coram: Davies J Date: 20 September 1995 Place: Sydney

REASONS FOR JUDGMENT The issue with which I am now dealing is the costs of the two applications in which judgment was given on 26 July 1995. One application, which was called "the Brandown application", was an application brought by the trustee, Hugh Jenner Wily. Mr Wily sought the recovery of two shares in Brandown Pty Limited ("Brandown") which the bankrupt, Mr Leslie Ross Burton had transferred to a family company, NJW Contractors Pty Limited ("NJW"). In that application, Brandown was joined as first respondent, NJW was the second respondent and three persons, Patrick James Hallinan, George Frank Rodgers and Max David Rodgers, who were the remaining directors and shareholders in Brandown, were joined as the third respondents. The second application was an application brought by Mr Burton for annulment of his bankruptcy. In that application, the only parties were the bankrupt himself and the trustee. The trustee was successful and now seeks his costs as against Mr Burton and NJW. The trustee also seeks his costs on an indemnity basis. Dealing first with that application, in my opinion, the costs of the annulment application should be paid both by Mr Burton and by NJW. I agree with the submission of Mr Holmes that it is unlikely that the application for annulment would have been brought save as a defensive step taken to avoid the possible adverse result of the trustee's application to recover the Brandown shares. The application was brought at a very late stage after there had already been a good deal of litigation with respect to