Rasevi Pty Limited v Udowenko [2004] FCA 541

FEDERAL COURT OF AUSTRALIA

Rasevi Pty Limited v Udowenko [2004] FCA 541 COSTS – payment of costs out of the bankrupt estate where bankrupt moves to set aside sequestration order Bankruptcy Act 1966 (Cth) ss 30 & 109(1)(a) Federal Court Act 1976 (Cth) s 23

Guss v Johnstone [2000] FCA 1584 referred to Stankiewicz v Plata [2000] FCA 1185 referred to RASEVI PTY LIMITED (ACN 002 579 286) v MICHAEL UDOWENKO & HELEN UDOWENKO N 7060 of 2002 JACOBSON J 4 MAY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7060 of 2002

BETWEEN: RASEVI PTY LIMITED

(ACN 002 579 286)

APPLICANT

AND: MICHAEL UDOWENKO and HELEN UDOWENKO

RESPONDENTS

JUDGE: JACOBSON J

DATE OF ORDER: 4 MAY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1 The applicant creditor's costs ordered to be paid by orders dated 12 November 2002, 7 February 2003, 26 March 2003 and 2 May 2003 be paid out of the bankrupt estates of the respondents in accordance with s 109(1)(a) of the Bankruptcy Act.

2 The applicant creditor's costs of this motion be paid out of the estates on the same 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 7060 of 2002

BETWEEN: RASEVI PTY LIMITED

(ACN 002 579 286)

APPLICANT

AND: MICHAEL UDOWENKO and HELEN UDOWENKO

RESPONDENTS

JUDGE: JACOBSON J

DATE: 4 MAY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is a Notice of Motion brought by the applicant for an order that the orders for costs made in its favour on 12 November 2002, 7 February 2003, 26 March 2003 and 2 May 2003 be paid out of the bankrupt estates of Michael Udowenko and Helen Udowenko jointly. Sequestration orders were made against Mr and Mrs Udowenko by Registrar Hedge on 23 July 2002. 2 The reason this application is made is that each of the costs orders to which I have referred provided that Mr and Mrs Udowenko pay the applicant's costs without stating that the costs be taxed and paid out of the bankrupts' estates in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth). 3 The costs orders were made on various Notices of Motion brought by Mr and Mrs Udowenko and their son, Wolodymyr. I made two of the orders, namely the order of 26 March 2003 and the order of 2 May 2003. The order of 12 November 2002 was made by Moore J and the order of 7 February 2003 was made by Lindgren J. 4 The order for costs which I made on 2 May 2003 was made when I refused an application for leave to appeal from a judgment of Lindgren J given on 7 February 2003 dismissing a motion to set aside an order made by Moore J on 12 November 2002. On that date Moore J dismissed a motion to "review" or "strike out" the sequestration order made by Registrar Hedge. Moore J dismissed the motion by reason of the non-appearance of Mr and Mrs Udowenko. 5 The costs order which I made on 26 March 2003 was made when I adjourned the hearing of the application for leave to appeal. 6 The Official Trustee submits to any order the Court may make on the present application. In an effort to save costs in the administration of the estates, the Trustee did not wish to be heard on the application. The Trustee's position is understandable and it was not necessary for the solicitors to attend. 7 I am satisfied that I have power to make the orders sought under s 23 of the Federal Court Act 1976 (Cth) and s 30 of the Bankruptcy Act.