Finance & Mortgage Corp (NSW) Pty Ltd v Davies, Kevin William [1998] FCA 820

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 985 of 1997

BETWEEN: FINANCE & MORTGAGE CORP (NSW) PTY LTD

AppELLANT

AND: KEVIN WILLIAM DAVIES

Respondent

JUDGES: LINDGREN, MARSHALL, MADGWICK JJ

DATE: 3 JULY 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT (ex tempore)

THE COURT:

INTRODUCTION The present appeal is against certain orders made by Emmett J on 4 November 1997 on the hearing of a bankruptcy petition. His Honour's orders were as follows:: "1 The petition be dismissed. 2 There be no Order as to the costs of the petition up to and including 6 June 1997 3 The petitioner pay the costs of the debtor after 6 June 1997." Before his Honour, the appellant was the petitioning Creditor and the respondent was the Debtor. The particular order complained of by the Creditor is the second order, that is, that there be no order as to the costs of the petition up to and including 6 June 1997. That date was the return date of the petition. In its notice of appeal, the Creditor seeks, in substitution for the second order, an order that the Debtor pay the Creditor's costs up to and including 6 June 1997. Counsel for the Creditor has frankly acknowledged that the amount of these costs would, on any reckoning, be small. In fact, an inquiry made of the Registry prior to the hearing reveals that on the basis of a short form bill, one might reasonably expect the costs (including filing and service fees) to be of the order of $3,000. However, counsel for the Creditor suggests that the appeal raises an important issue as to the exercise of the discretion in relation to costs, in the not uncommon situation in which a debtor has not sought to set aside a bankruptcy notice, has committed an act of bankruptcy upon expiry of the period fixed by the notice, and has thereby "led" the creditor to file the petition.