Pekar v Holden (No 2) [2021] FCA 343

Federal Court of Australia

Pekar v Holden (No 2) [2021] FCA 343 File number: VID 614 of 2020

Judgment of: SNADEN J

Date of judgment: 14 April 2021

Catchwords: COSTS – application for indemnity costs – whether substantive application lacked reasonable prospects of success or otherwise amounted to an abuse of process – relevant principles regarding order for costs – whether court should exercise its discretion to order indemnity costs – indemnity costs awarded

Legislation: Federal Court of Australia Act 1976 (Cth) – s 37AO

Cases cited: Australian Competition and Consumer Commission v PZ Cussons Australia Pty Ltd [2021] FCA 246 Pekar v Holden [2021] FCA 141 Wu v Avin Operations Pty Ltd (No 2) [2006] FCA 792

Division: General Division

Registry: Victoria

National Practice Area: Commercial and corporations

Sub Area: General and personal insolvency

Number of paragraphs: 8

Date of last submissions: 1 March 2021 (respondent)

Date of hearing: Determined on the papers

Solicitor for the Applicant: The applicant did not provide any submissions

Solicitor for the Respondent: Rothwell Lawyers Pty Ltd

ORDERS VID 614 of 2020

BETWEEN: FIMA PEKAR Applicant

AND: TIMOTHY MARK SHUTTLEWORTH HOLDEN Respondent

order made by: SNADEN J DATE OF ORDER: 14 April 2021

THE COURT ORDERS THAT:

1. The applicant pay the respondent's costs of the proceeding (including those pertaining to the respondent's interlocutory application dated 10 February 2021), such costs to be assessed (if not agreed) on an indemnity basis and paid out of the applicant's bankrupt estate. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.