McMillan v Warner as trustee in the bankruptcy of McMillan [2024] FCA 525

Federal Court of Australia

McMillan v Warner as trustee in the bankruptcy of McMillan [2024] FCA 525 Appeal from: Warner (Trustee), in the matter of McMillan (Bankrupt) v McMillan [2020] FCA 1759

File number: NSD 191 of 2021

Judgment of: LOGAN J

Date of judgment: 10 May 2024

Catchwords: COSTS – where the successful appellant applies to have its costs fixed in a lump sum by a registrar in the first instance – where the respondent seeks that costs be fixed by a judge – where the appeal and its conduct was unexceptional – whether costs should be fixed in a lump sum by a registrar – application granted

Legislation: Federal Court of Australia Act 1976 (Cth) s 25

Cases cited: Warner (Trustee), in the matter of McMillan (Bankrupt) v McMillan [2020] FCA 1759 McMillan v Warner [2022] FCAFC 20

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 19

Date of hearing: 10 May 2024

Counsel for the Appellant: Ms M Castle

Solicitor for the Appellant: Somerset Ryckmans

Counsel for the Respondent: Mr P Doyle Gray

Solicitor for the Respondent: Diamond Conway Lawyers

ORDERS NSD 191 of 2021

BETWEEN: KARIN ELISABETH MCMILLAN Appellant

AND: ANTHONY JOHN WARNER IN HIS CAPACITY AS TRUSTEE IN BANKRUPTCY OF THE ESTATE OF BRIAN MCMILLAN Respondent

order made by: LOGAN J DATE OF ORDER: 10 MAY 2024

THE COURT ORDERS THAT:

1. The costs payable by the Respondent pursuant to order 2(b) made on 23 February 2022 be fixed in a lump sum. 2. The costs payable by the Respondent pursuant to order 3 made on 23 February 2022 be fixed in a lump sum. 3. Within 6 weeks of the date of these Orders, the Respondent is to file a Costs Response. 4. Within 14 days of receipt of the Costs Response and submissions the Appellant to file and serve submissions in reply not exceeding 5 pages. 5. The quantum of the lump sum for costs payable pursuant to Orders 1 and 2 above be determined by a registrar. 6. The issue of the determination of the quantum of the lump sum for costs payable pursuant to Orders 1 and 2 above be listed for hearing before a registrar on a date fixed by that registrar after consultation with the parties. 7. Liberty to apply. 8. The costs of the case management hearing be the Appellant's costs in the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.