Brake v Townsend [2006] FCA 1156

FEDERAL COURT OF AUSTRALIA

Brake v Townsend [2006] FCA 1156 BANKRUPTCY – appeal from orders of Federal Magistrate Coker fixing the remuneration of a trustee – consideration of whether a proper foundation subsisted for the exercise of a power to fix costs – consideration of the source of the power – consideration of the intersection between such a power and s 162 of the Bankruptcy Act 1966 (Cth).

Bankruptcy Act 1966 (Cth) Bankruptcy (Estate Charges) Act 1997

House v The King (1936) 55 CLR 499 - cited Duncan v McVeigh & Anor FMCA 759 - cited Bellin v Pattison (Trustee) [1999] FCA 51 - cited Mayne v Jaques (1959 – 1960) 101 CLR 169 Re Wong ex parte Wong v Donnelly (1995) 63 FCR 426 PAUL NEWTON BRAKE v JULIE-ANN TOWNSEND QUD121 OF 2005 GREENWOOD J 29 AUGUST 2006 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLANDDISTRICT REGISTRY QUD121 OF 2005

BETWEEN: PAUL NEWTON BRAKE

APPELLANT

AND: JULIE-ANN TOWNSEND

RESPONDENT

JUDGE: GREENWOOD J

DATE OF ORDER: 29 AUGUST 2006

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The appellant trustee of the estate of Ms Julie‑Ann Townsend is entitled to be paid costs, charges and expenses of the administration of the bankruptcy including the remuneration of the trustee on the following basis: (a) for the period 20 June 2003 to 5 November 2004, an amount of $40,110.23 less the amount received in the sum of $15,000.00 plus applicable GST; and (b) for the period from 5 November 2004 to the date of this order, remuneration of the trustee as determined by operation of s 162 of the Bankruptcy Act 1966 (Cth) and Bankruptcy Regulations; and (c) costs, charges and expenses incurred on an indemnity basis. 2. The respondent shall pay to the appellant the sum of $25,110.23 plus applicable GST within 45 days of the date of this order. 3. The respondent shall pay the appellant the amount of the remuneration determined in accordance with order 1(b) of these orders within 45 days of delivery by the appellant to the respondent of an itemised Bill of Costs or, alternatively, within 14 days of the issuance of a certificate of taxation in the event that the respondent requests such Bill of Costs to be taxed under the provisions of the Act and the Bankruptcy Regulations. 4. The respondent shall pay the appellant the amount of the costs, charges and expenses referred to in order 1(c) of these orders within 45 days of delivery of an itemised Bill of Costs or alternatively within 14 days of the issuance of a certificate of taxation in the event that the respondent requests such Bill of Costs to be taxed under the provisions of the Act and the Bankruptcy Regulations. 5. The appellant shall be entitled to apply the property of the former bankrupt still vested in the trustee in payment of the costs, charges and expenses of the administration of the bankruptcy including the remuneration and expenses of the trustee as determined in accordance with these orders. 6. The respondent shall pay the appellant's costs of the hearing in the Federal Magistrates Court limited to those costs of and incidental to the relief sought by the respondent pursuant to s 153A of the Act and the following orders sought by paragraphs 1 and 2 of the respondent's application dated 16 February 2004 and filed on 24 February 2004, namely: '(1) that the bankruptcy of the applicant be annulled on the grounds that the applicant has paid every creditor in full including trustee's fees; and (2) a declaration that the trustee has deliberately contributed to the excessive charges imposed on the bankrupt by over administering a very simple estate'.