Singh v Khan (No 2) [2023] FCA 239

Federal Court of Australia

Singh v Khan (No 2) [2023] FCA 239 File number: NSD 465 of 2021

Judgment of: COLVIN J

Date of judgment: 20 March 2023

Legislation: Federal Court of Australia Act 1976 (Cth) s 43

Cases cited: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 Norbis v Norbis (1986) 161 CLR 513 Oshlack v Richmond River Council (1998) 193 CLR 72 Singh v Khan [2023] FCA 76

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 4

Date of hearing: Determined on the papers

Counsel for the Appellant: The appellant did not appear

Counsel for the Respondents: Mr EAJ Hyde

Solicitor for the Respondents: Mills Oakley

ORDERS NSD 465 of 2021

BETWEEN: GURJIT SINGH Appellant

AND: GHULAM KHAN First Respondent

SAMINA KHAN Second Respondent

FOBUPU PTY LTD Third Respondent

order made by: COLVIN J DATE OF ORDER: 20 march 2023

THE COURT ORDERS THAT:

1. The appellant pay the respondents' costs of and incidental to the appeal such costs to be assessed on a lump sum basis by a registrar if not agreed Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J: 1 Mr Singh brought an appeal against the making of a sequestration order in respect of his estate. His appeal was dismissed with provision for any application for orders as to costs: Singh v Khan [2023] FCA 76. The respondents to the appeal (who had been the petitioners for bankruptcy) now seek costs. They have filed short submissions in support of such an order. They rely upon their success in opposing the appeal and the absence of any circumstances that might justify the exercise of the costs discretion by making some order other than an order in their favour. 2 Provision was made for Mr Singh to make application for costs and file written submissions in opposition to any application by the respondents. An order was made that subject to any further order, any application for costs should be determined on the papers. No application or submissions have been filed by Mr Singh. In the circumstances it is appropriate to deal with the question of costs on the papers. 3 The award of costs is discretionary: s 43 of the Federal Court of Australia Act 1976 (Cth). Settled principle guides the exercise of the discretion which is to be exercised judicially: Norbis v Norbis (1986) 161 CLR 513 at 519; and Oshlack v Richmond River Council (1998) 193 CLR 72 at [65] (McHugh J, Brennan CJ agreeing), [134] (Kirby J). Generally, the discretion is exercised in favour of the successful party: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at [25]. 4 I am satisfied that as Mr Singh was unsuccessful it is appropriate to make the order for costs sought by the respondent. In accordance with the practice of the Court I will also order that the costs be assessed on a lump sum basis if not agreed. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.