Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Rimac v Costa, in the matter of Rimac [2003] FCA 916
BANKRUPTCY – appeal from decision of Federal Magistrate dismissing application to set aside bankruptcy notice – application for interlocutory relief
Rimac v Costa [2001] NSWSC 938 cited Rimac v Costa [2003] FMCA 251 cited MIRKO RIMAC v PLACIDO COSTA N757 OF 2003 EMMETT J 24 JUNE 2003 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N757 OF 2003
BETWEEN: MIRKO RIMAC
APPLICANT
AND: PLACIDO COSTA
RESPONDENT
JUDGE: EMMETT J
DATE OF ORDER: 24 JUNE 2003
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. the application for interlocutory relief in support of any appeal pursuant to the notice of motion filed on 24 June 2003 be dismissed; 2. the applicant pay the respondent's costs. 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 N757 OF 2003
BETWEEN: MIRKO RIMAC
APPLICANT
AND: PLACIDO COSTA
RESPONDENT
JUDGE: EMMETT J
DATE: 24 JUNE 2003
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 Yesterday, an application was made orally by counsel acting on behalf of Mirko Rimac ('the Debtor'), who was the applicant in a proceeding brought in the Federal Magistrates Court. The respondent in that application was Placido Costa ('the Creditor'). The Debtor apparently sought an order setting aside bankruptcy notice NN2349 of 2002 dated 5 December 2002 ('the bankruptcy notice'). Driver FM dismissed that application on 23 June 2003 following a hearing on 22 April 2003: see Rimac v Costa [2003] FMCA 251. 2 The judgment debt upon which the bankruptcy notice was based is a judgment entered in the Supreme Court of New South Wales in proceeding SC1972 of 1998 against the Debtor and his father, Nenad Rimac. The judgment was entered pursuant to an order for costs made against the Debtor by Santow J on 16 October 2001: see Rimac v Costa [2001] NSWSC 938. Santow J observed that, prima facie, the Debtor, with his father, should be ordered to pay the Creditor's costs up to and including the date of the Debtor's withdrawal from the proceeding, namely 9 October 2001. However, because the Debtor was not present to put any matters to the contrary, his Honour made orders having that result but deferred them from operation for seven days to give him the opportunity to be heard. The orders his Honour made were, relevantly, as follows: '1. The Plaintiff's proceedings should be dismissed with costs on the basis that the First and Second Plaintiffs should be liable for the said costs, in the case of the Second Plaintiff up to and including 9 October 2001 but not thereafter. 2. So far only as the Second Plaintiff is concerned, the order in paragraph 1 shall not take effect until the expiry of 23 October 2001, with liberty to apply in the meantime on reasonable notice.'
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