FEDERAL COURT OF AUSTRALIA

Australian Prudential Regulation Authority v Siminton (No 13) [2008] FCA 303  

PRACTICE AND PROCEDURE – Costs – Costs associated with Receiver’s notice of motion – Where application necessary but lengthened by Respondent’s opposition and failure to comply with earlier orders – Written submissions on costs orders – Respondent ordered to pay 50 per cent of the Receiver’s costs

Australian Prudential Regulation Authority v Siminton (No 12) [2008] FCA 101 referred to

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY v DAVID ROBERT SIMINTON

VID 1607 OF 2005

TRACEY J

17 MARCH 2008

MELBOURNE

THE COURT ORDERS THAT:

1.                  The Respondent pay 50 per cent of the Receiver’s costs of and incidental to the Amended Notice of Motion dated 4 February 2008.

2.                  To the extent that the Receiver does not recover, prior to the final distribution to depositors, any or all of his entitlement to costs from the respondent pursuant to Order 1, the Receiver is entitled to be indemnified in respect of his costs of and incidental to the Amended Notice of Motion from the Funds (as that term is defined in the orders of the Court made on 7 November 2007).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 21 February 2008 I delivered reasons for judgment in relation to an application, made by a Court appointed receiver, for orders:

·                    that certain funds be added to the funds comprehended by the receivership;

·                    extending the period of the receiver’s appointment;

·                    extending the time within which the receiver was required to prepare and file a report;

·                    requiring the respondent to file an affidavit of documents;

·                    requiring the respondent to provide copies of documents to the receiver on request; and

·                    requiring the respondent to attend before the receiver for oral examination.

See Australian Prudential Regulation Authority v Siminton (No 12) [2008] FCA 101.

2                     I made the orders sought save for the order requiring attendance for oral examination.  I did not make that order because I was informed that an oral examination had taken place.  I reserved the right of the receiver to apply for an order requiring a further oral examination.

3                     I reserved the question of costs.  As directed each party has filed and served written submissions on what costs orders should be made.  I have now considered those submissions.

4                     It was necessary for the receiver to make application for the orders relating to the funds and extensions of time but the hearing was lengthened by the respondent’s opposition to the making of those orders.  The other orders which were made were necessary because the respondent had failed to comply with orders made by the Court in November 2007.  The respondent also resisted the making of any of the other orders sought.  Thus, although a short hearing at the instance of the receiver was unavoidable the respondent’s unsuccessful opposition to the making of the orders sought added to the time required for the parties’ preparation and for the hearing.

5                     In my view the appropriate order is that the respondent pay 50 per cent of the receiver’s costs of the Amended Notice of Motion dated 4 February 2008.  If the respondent does not comply with the order that he pay these costs the receiver should be entitled to be indemnified from the funds under his control to the extent of any default.  He should not be required to bear that cost personally should the respondent fail to satisfy the costs order made against him.

Associate:

Dated:         17 March 2008