Batiste, in the matter of St George Bank Limited v Batiste [2002] FCA 1623

FEDERAL COURT OF AUSTRALIA Batiste, in the matter of St George Bank Limited v Batiste [2002] FCA 1623 BANKRUPTCY – costs of Creditor's Petition – whether costs should be awarded on an indemnity basis Colgate Palmolive Co v Cussens Pty Ltd (1993) 46 FCR 225 cited Sony Computer Entertainment Australia Pty Ltd v Dannoun (No 2) [2001] FCA 1530 cited Chapman v Luminis Pty Ltd (No 7) [2002] FCA 1098 cited IN THE MATTER OF DONNA MARIA BATISTE ST GEORGE BANK LIMITED v DONNA MARIA BATISTE N 7516 OF 2001 HELY J 24 DECEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7516 OF 2001

BETWEEN: ST GEORGE BANK LIMITED

APPLICANT

AND: DONNA MARIA BATISTE

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 24 DECEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Creditor's Petition be dismissed. 2. The applicant's costs of the Petition be paid out of the estate of the debtor with the same priority as if a sequestration order had been made, on a party-party basis. 3. The costs referred to in Order 2 are not to include the costs of the hearing on 18 December 2002. 4. The applicant's costs of and incidental to the Notice of Motion filed on 5 June 2002 be paid by the debtor on an indemnity basis. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7516 OF 2001

BETWEEN: ST GEORGE BANK LIMITED

APPLICANT

AND: DONNA MARIA BATISTE

RESPONDENT

JUDGE: HELY J

DATE: 24 DECEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This matter has a long history. It is summarised in the chronology of some five pages in length attached to a document styled "Outline of Applicant Creditor's Submissions" which I have placed with the papers. I will not repeat that history in these reasons, which should be read against the background provided by that chronology. 2 It is common ground that the Creditor's Petition ("the Petition") should be dismissed having regard to the composition approved by the requisite majority of creditors on 29 November 2002. It is also common ground that the Court has power, notwithstanding the dismissal of the Petition, to order that the applicant's costs be paid out of the debtor's estate with the same priority as if a sequestration order had been made. 3 The contest between the parties is as to whether: (a) an order for payment of costs should be made in relation to the Notice of Motion filed on 5 June 2002 on an indemnity basis; (b) an order for payment of costs should be made in relation to the Petition on an indemnity basis; and (c) the corporate respondents to the motion should be ordered to pay the costs in relation to the Petition, although they are not parties to the Petition.