Fidelity Capital (Australia) Pty Ltd v Delic (No 2) [2022] FCA 123

Federal Court of Australia

Fidelity Capital (Australia) Pty Ltd v Delic (No 2) [2022] FCA 123 Appeal from: Delic v Kazar and Slaven as Joint Trustees in the Bankrupt Estate of Delic (No 2) [2021] FCCA 130

File number(s): NSD 131 of 2021

Judgment of: GRIFFITHS J

Date of judgment: 18 February 2022

Catchwords: BANKRUPTCY AND INSOLVENCY – where appeal allowed in part – parties unable to agree final orders including as to costs

Cases cited: Commissioner of Taxation v Bosanac (No 2) [2022] FCAFC 5

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 12

Date of last submission/s: 14 February 2022

Date of hearing: Determined on the papers.

Solicitor for the Appellant: ERA Legal

Solicitor for the First Respondent: The first respondent appeared in person

Solicitor for the Second Respondent: Emerson Lewis Lawyers (the second respondent filed a submitting notice save as to costs)

ORDERS NSD 131 of 2021

BETWEEN: FIDELITY CAPITAL (AUSTRALIA) PTY LTD Appellant

AND: DAMIR JAKOV DELIC First Respondent

MICHAEL SLAVEN AS TRUSTEE IN THE BANKRUPT ESTATE OF DAMIR JAKOV DELIC Second Respondent

order made by: GRIFFITHS J DATE OF ORDER: 18 FEBRUARY 2022

THE COURT ORDERS THAT:

1. The appeal be allowed in respect of grounds 1A and 8 of the amended notice of appeal and ground 13 in part for an amount of $2,682.33. 2. The appeal otherwise be dismissed. 3. The orders dated 5 February 2021 in the proceeding below be set aside. 4. Pursuant to s 104(2) of the Bankruptcy Act 1966 (Cth), the second respondent admit the appellant's proof of debt for the amount of $97,847.33. 5. The orders made below on 9 April 2021, as amended on 22 April 2021, be set aside. 6. There be no order as to costs regarding the appeal, save for the following: (a) the first respondent pay the appellant's costs thrown away by reason of the adjournment granted on 30 June 2021, as agreed or taxed; (b) the first respondent pay the appellant's costs of the appearance on 31 August 2021 which was consequential upon the adjournment granted on 30 June 2021, as agreed or taxed; and (c) the first respondent pay the appellant's costs thrown away on 10 November 2021 resulting from the first respondent's failure to comply with the Court's orders dated 31 August 2021, as agreed or taxed. 7. The first respondent pay one-third of the appellant's costs of the proceeding below, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.