FEDERAL COURT OF AUSTRALIA Nilant v Macchia [2000] FCA 1778 CHARLES PHILIPPE LOUIS NILANT v MARIO SILVERIO MACCHIA W 62 of 2000 HILL, CARR and WEINBERG JJ 6 DECEMBER 2000 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 62 OF 2000 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CHARLES PHILIPPE LOUIS NILANT Appellant AND: MARIO SILVERIO MACCHIA Respondent JUDGES: HILL, CARR AND WEINBERG JJ DATE OF ORDER: 6 DECEMBER 2000 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The order in relation to costs, made on 27 April 2000, be set aside. 2. The respondent pay the appellant's costs of the proceedings at first instance and of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 62 OF 2000 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CHARLES PHILIPPE LOUIS NILANT Appellant AND: MARIO SILVERIO MACCHIA Respondent JUDGES: HILL, CARR AND WEINBERG JJ DATE: 6 DECEMBER 2000 PLACE: PERTH REASONS FOR JUDGMENT THE COURT: 1 In this matter we published our reasons for allowing the appeal on 27 October 2000. An issue then arose between the parties about the appropriate costs orders which should be made. Accordingly, an order was made that the appeal be allowed and directions were given for the filing and service of minutes of orders and submissions by each party. No minute of orders has been filed by either party, but each has filed submissions on the questions of the appropriate costs orders in relation to the proceedings at first instance and on the appeal. 2 The respondent submits that each party should bear his own costs of the proceedings at first instance and on appeal. The appellant seeks an order that the respondent pay his costs of the appeal and at first instance. THE COSTS AT FIRST INSTANCE 3 The respondent relies upon the fact that it was not until 17 December 1999 that the appellant withdrew his objections to the discharge of the respondent from bankruptcy and agreed not to seek to enforce the contribution assessments. The respondent (in the relevant paragraph of his submissions he referred to himself as being the appellant) claimed thereby to have enjoyed a substantial measure of success in the proceedings at first instance. 4 On the other hand, the appellant makes the point that he withdrew the objections to discharge well before the hearing which took place in February 2000. Furthermore, the appellant contends that the proceedings before the primary judge included the bankrupt's application to have the trustee removed from office and says that the bulk of the affidavit material was directed to that attempt, but the claim was not pursued at the hearing. That factor outweighed, so the appellant maintains, any success which the respondent might claim in relation to the objections. 5 We accept the appellant's submissions in relation to the costs at first instance. Our impression is that the degree of success on the two issues referred to above was evenly balanced as between the parties. However, as the appellant raised the argument based on s 306(1) of the Bankruptcy Act 1966 (Cth) at first instance and was successful in relation to that point on appeal, the balance tilts in his favour. 6 In our view, there should be an order that substitutes for the learned primary judge's order of 27 April 2000 (that there be no order as to costs), an order that the respondent pay the appellant's costs of the proceedings at first instance. THE COSTS OF THE APPEAL 7 In relation to the appeal, the respondent relies upon the paucity of argument at first instance on the applicability of s 306, and asserts that the appellant constructed and submitted a fresh argument on the appeal. The respondent raises other discretionary factors which, in our view, are irrelevant. 8 We do not accept the respondent's submissions. In our opinion, the costs of the appeal should follow the event. The respondent should be ordered to pay the appellant's costs of the appeal. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 6 December 2000 Counsel for the Appellant: Mr A J N Aristei Solicitor for the Appellant: Carles Solicitors Counsel for the Respondent: Mr G J O'Hara Solicitor for the Respondent: Kott Gunning Date of Hearing: 31 August 2000 Date of Judgment: 6 December 2000