STX Pan Ocean Co Ltd v Thomson [2012] FCA 662

FEDERAL COURT OF AUSTRALIA

STX Pan Ocean Co Ltd v Thomson [2012] FCA 662 Citation: STX Pan Ocean Co Ltd v Thomson [2012] FCA 662

Appeal from: Thompson v STX Pan Ocean Co Ltd [2011] FMCA 575

Parties: STX PAN OCEAN CO LTD v DAVID JOHN THOMSON

File number: QUD 661 of 2011

Judge: LOGAN J

Date of judgment: 16 May 2012

Catchwords: COSTS – award of costs on an indemnity basis – bankruptcy notice – unsuccessful defence of challenge to setting aside of bankruptcy notice – whether federal magistrate erred in finding the offer of comprise was extended in a 'Calderbank context' and that refusal of appellant to accept offer was a sufficient foundation for awarding indemnity costs – no necessary consequence that refusal of offer of compromise results in award of indemnity costs – awarding of costs on indemnity basis by federal magistrate not an unreasonable exercise of discretion – appeal dismissed

Legislation: Bankruptcy Act 1966 (Cth) s 41 Bankruptcy Regulations 1996 (Cth) reg 4.04

Cases cited: The Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33 cited Calderbank v Calderbank [1975] 3 All ER 333 referred to Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 considered Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71 cited Parianos v Lymlind Pty Ltd (1999) 93 FCR 191 cited Tati v Stonewall Hotel Proprietary Limited (No 2) [2012] NSWCA 124 followed Thompson v Stx Pan Ocean & Co Ltd [2011] FMCA 575 referred to Thompson v Stx Pan Ocean Co Ltd (No 2) [2011] FMCA 947 referred to