FEDERAL COURT OF AUSTRALIA Boensch v Costin [2005] FCA 1249 FRANZ BOENSCH v MICHAEL COSTIN NSD1202 of 2005 LINDGREN J 2 SEPTEMBER 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD1202 of 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: FRANZ BOENSCH APPELLANT AND: MICHAEL COSTIN RESPONDENT JUDGE: LINDGREN J DATE OF ORDER: 2 SEPTEMBER 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1 The appeal be dismissed. 2 The respondent's costs of the appeal be treated as part of the respondent's costs as petitioning creditor in the bankruptcy proceeding for the purposes of s 109(1)(a) of the Bankruptcy Act 1966 (Cth). 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 NSD1202 of 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: FRANZ BOENSCH APPLELLANT AND: MICHAEL COSTIN RESPONDENT JUDGE: LINDGREN J DATE: 2 SEPTEMBER 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant appeals from a judgment given by Federal Magistrate Raphael in the Federal Magistrates Court of Australia on 12 July 2005 (Boensch v Costin [2005] FMCA 1028). 2 Before the Federal Magistrate, the appellant sought review of an order of Registrar Tesoriero dismissing an application under s 41 of the Bankruptcy Act 1966 (Cth) to set aside a bankruptcy notice or to extend the time for compliance with it. His Honour dismissed the application and ordered the appellant to pay the respondent creditor's costs to be taxed, if not agreed, pursuant to the Federal Court of Australia Act 1976 and the Federal Court Rules. 3 On 17 August 2005 the appellant appeared in person and the creditor through his solicitor appeared before me, and I fixed the appeal for hearing today. 4 In the meanwhile, on 23 August 2005, a sequestration order was made in respect of the appellant's estate by Federal Magistrate Driver. 5 On the appeal being called this morning, the appellant has not appeared. I am satisfied that he knew that the appeal was fixed for hearing this morning. 6 Pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), I dismiss the appeal. 7 The appropriate order in relation to costs is that the respondent creditor's costs of this appeal be treated as part of his costs as petitioning creditor for the purposes of s 109(1)(a) of the Bankruptcy Act 1966 (Cth). I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 9 September 2005 The appellant did not appear. Solicitor for the Respondent: Ms K McLean of McLean & Associates Date of Hearing: 2 September 2005 Date of Judgment: 2 September 2005