FEDERAL COURT OF AUSTRALIA

Inspector General in Bankruptcy v Coshott [2014] FCA 42

THE COURT DECLARES THAT:

1.    The respondent is the person who requested and/or asked for the taxation conducted by Alyson Wendy Ashe and pursuant to which Ms Ashe signed a certificate of taxation dated 13 February 2013 (“the taxation”).

2.    The respondent is and was liable to pay the costs of the taxation 7 days after receipt of the applicant’s tax invoice dated 4 March 2013 in accordance with reg 8.11A(2) of the Bankruptcy Regulations 1966 (Cth) as in force immediately prior to 1 December 2010.

THE COURT ORDERS THAT:

1.    The respondent is to pay the applicant $144,962.12 plus interest.

2.    The parties are to seek to agree an order for costs by 14 February 2014 and to file an agreed order by close of business on that day. If they cannot reach agreement each is to file and serve their proposed order, together with a supporting written submission not exceeding 2 pages in length, by 18 February 2014.

3.    Final orders will be made on the papers and without a further oral hearing.

4.    The application is otherwise dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The central issue is who is liable to pay the costs of a taxation of various bills of costs relating to the remuneration of the trustee of the respondent’s bankrupt estate and the trustee’s legal advisers. The total costs of the taxation are in the amount of $144,962.12. The applicant argues that the respondent is liable to pay that amount because he was the person who requested the taxation and such liability arises on the proper construction of relevant provisions of the Bankruptcy Act 1966 (Cth) (the Act) and Bankruptcy Regulations 1966 (Cth) (the Regulations). Alternatively (and very belatedly), the applicant also raised for the first time in his oral reply that such liability arises under contract. The respondent denies any liability at all and says that the trustee is liable because he requested the taxation. The trustee is not a party to the proceeding.

2    It is convenient to first summarise the relevant background facts before outlining the relevant legislative provisions and the parties’ respective arguments.

Summary of relevant background facts

3    The applicant is the Inspector-General in Bankruptcy, which is an office created by s 11(1) of the Act. He is the chief executive of the Insolvency and Trustee Service Australia (ITSA), which is an executive agency established under s 65 of the Public Service Act 1999 (Cth) and has responsibility for the administration and regulation of the personal insolvency system in Australia. ITSA’s name was recently changed to the Australian Financial Security Authority, but it is convenient to continue to refer to it as ITSA because that was its name at the time of the relevant events.

4    On 7 November 2008, a sequestration order was made against the respondent’s estate. On 18 December 2008, Mr John Burke replaced the official trustee as trustee of the respondent’s estate.

5    On 16 September 2010, the respondent sent an email at 2:44 pm to Mr Bradley O’Brien at ITSA, in which he made a request, which was expressed to be made pursuant to reg 8.09, for the taxing officer to tax what he described as a claim made in his estate by Mr Burke “in the sum of $626,787.50 for remuneration and costs”. This request was made in the context of litigation, the parties to which included the respondent and his trustee in bankruptcy. That litigation had been allocated to the docket of Rares J. In the course of the litigation, the respondent raised the possibility of there being an annulment of his bankruptcy under s 153A of the Act. For that to occur, it was necessary for the trustee to be satisfied that all the bankrupt’s debts had been paid in full (see s 153A(1)). A “bankrupt’s debts” is defined in s 153A(6) as including “the costs, charges and expenses of the administration of the bankruptcy, including the remuneration and expenses of the trustee”.

6    Mr O’Brien replied to the respondent in an email sent at 5:29 pm on 16 September 2010 advising that the respondent should contact Mr Karolyi at ITSA concerning his request for a taxation. Mr O’Brien also stated that, for completeness, if the respondent was relying on a previous email from Mr O’Brien to him as notice of the trustee’s claim for remuneration, his earlier email “contained estimates only, albeit based on my discussion with the trustee” and that there may be an issue as to whether Mr O’Brien’s earlier email was “sufficient ‘notice’ for the purposes of seeking a taxation”.

7    By a further email sent on 16 September 2010 at 5:57 pm, the respondent informed Mr O’Brien that he had “an email from Mr Burke setting out his claim for remuneration and Nash and Johnson’s costs”. The reference in the respondent’s email to “Nash and Johnson” is a reference to Mr Burke’s legal advisers. Mr Burke’s email was not adduced in evidence for reasons which were unexplained. It is apparent, however, that the respondent was relying upon that email as setting out the trustee’s claim for remuneration and costs and was not simply relying on Mr O’Brien’s earlier email which provided an estimate of those costs. It is also evident from this communication, as is the case with his earlier email, that the respondent intended to request a taxation not only of Mr Burke’s remuneration but also the costs and disbursements incurred by Mr Burke as trustee of the respondent’s estate, including presumably the professional fees of Mr Burke’s legal advisers.

8    By email on 17 September 2010, Mr O’Brien confirmed to the respondent that Mr Karolyi was the manager of the ITSA Registry who could appoint a taxing officer on behalf of ITSA.

9    By email dated 20 September 2010, the respondent contacted Mr Karolyi and, again after making express reference to reg 8.09, requested pursuant to that provision that “the taxing officer…tax the claim made in my estate by Mr Burke in the sum of $626,787.50 for remuneration and costs”. He added that once the total amount of the admitted debts was determined and the trustee’s remuneration and costs were taxed, he would be in a position to proceed with the proposed annulment under s 153A. The express reference to taxing Mr Burke’s “remuneration and costs” is to be noted. This is an important matter for reasons which will emerge below.

10    The litigation to which reference was made above in which the respondent and Mr Burke were parties related to a contest over a property of which the respondent was one of the registered proprietors. Justice Rares made orders on 1 October 2010 that the proceedings be referred to the registrar for a case management conference and possible mediation with a view to finalising an appropriate payout figure.

11    On 28 October 2010, Mr Karolyi sent a letter by email to the respondent. The letter was written on ITSA’s letterhead and was signed by Mr Karolyi on behalf of the Official Receiver (the relevance of the fact that Mr Karolyi stated that the letter was written on behalf of the Official Receiver – and not the Inspector-General – is discussed below in the context of the applicant’s alternative claim in contract). In view of its significance to the contract claim it is convenient to set out the relevant terms of the body of Mr Karolyi’s letter:

I refer to your email dated 20 September 2010 and other subsequent emails requesting that the remuneration and costs claimed by Mr John Burke relating to his administration of the estate of Robert Gilbert Coshott, NSW 9145/8/5, be taxed.

Please note that the fee for taxation ($200 per hour) is payable by the person requesting the taxation and must be paid within 7 days of the receipt of the certificate of taxation. In instances where the taxation results in the remuneration of the trustee being reduced by at least 15%, the trustee must then meet the costs of taxation.

Should you wish to proceed with your request for taxation please acknowledge, by signing and returning a copy of this letter to me, that you are aware of the fee and that you may be liable for the cost of the taxation. I will then appoint a taxing officer.

The relevant regulations relating to the taxation of trustee’s (sic) remuneration and costs is attached.

Please provide the Official Receiver with copies of Mr Burke’s detailed remuneration claim and detailed bills of costs. If you have any further enquiries, please do not hesitate to contact me on the telephone number provided below.

Yours sincerely,

[Mr Karolyi’s signature]

Tibor Karolyi

For Official Receiver

…

Please sign and return if you wish to proceed with your application for taxation:

Name of person requesting the taxation: [Robert Gilbert Coshott]

Signature: [Mr Coshott’s signature]

Date: 28.10.10

(Emphasis in original)

12    Under cover of a letter also dated 28 October 2010, the respondent returned to Mr Karolyi a signed copy of Mr Karolyi’s letter of the same date as requested. The body of the respondent’s letter was in the following terms:

Herewith signed copy of your letter of today, as requested.

Also herewith claim delivered by Mr Burke for his fees and Schedule of fees and legal costs produced to the Federal Court in support of the claim made by him for remuneration and expenses in my estate.

The statutory provisions of the Act and regulations require you, upon receipt of a request for taxation to require the trustee to deliver to you fully itemised bills in taxable form within 28 days. If this requirement is satisfied, the matter is referred to a taxing officer appointed by the Inspector-General. If not satisfied, the trustee forfeits any claim for remuneration and expenses.

Please advise that the trustee has been required to deliver to you fully itemised bills for taxation.

13    On the same day, Mr Karolyi asked the trustee to provide a detailed remuneration claim and detailed bill of costs.

14    On 15 December 2010, Rares J made an order by consent that the proceedings be stood over. The Court also noted that in order to determine the qualification of the amount required to annul the respondent’s bankruptcy, the trustee would arrange for his remuneration to be drafted in taxable form under the regulations as they existed prior to 1 December 2010. No order was made by Rares J on 15 December 2010 requiring a taxation to take place but it can comfortably be inferred that his Honour was aware that a taxation was proceeding. That is because the fourth note of the orders stated:

The preceding orders have been made on the representation of the applicants and Robert Coshott that arrangements have been made for the taxation of the trustee’s remuneration and costs and expenses have been made (sic) with the representatives of the Inspector-General in Bankruptcy and the applicants and Robert Coshott have agreed to pay the taxing officer’s fees of $200 per hour. The taxing officer’s fees are to be paid by them within 14 days of the demand by the Inspector-General for such payment.

15    On 17 December 2010, Ms Noble from ITSA advised the respondent by email that, despite Mr Karolyi’s request on 28 October 2010, the trustee had not submitted his detailed remuneration claim and detailed bill of costs. She apologised that a taxing officer had not yet been appointed and said that one would be appointed early in the New Year. She added that one of the duties of the taxing officer “is to promptly require the submission of the remuneration claim and detailed Bill of Costs”.

16    By email dated 28 December 2010, the respondent asked an ITSA officer to request the trustee to deliver to the taxing officer “the itemised bills for all his remuneration (fees and third-party expenses)”, which presumably reflected the respondent’s view of the intended scope of the taxation.

17    On 18 January 2011, the respondent was advised that Ms Alyson Ashe had been appointed taxing officer on 17 January 2011. The formal notice of appointment referred to Ms Ashe taxing “all bills of costs of John Christopher Burke, as trustee of the estate of Robert Gilbert Coshott…in respect of his remuneration (including professional fees, disbursements and expenses) relating to the administration of that bankrupt estate”.

18    ITSA then shifted its position. For the first time in the matter, ITSA maintained that a distinction had to be drawn between a taxation of the trustee’s personal remuneration and “third party costs”. This change of position was revealed in a letter dated 19 January 2011 written by another ITSA officer (Mr Bryce Tomiczek) to the respondent. Mr Tomiczek stated that it was ITSA’s position, after obtaining legal advice, that in the light of s 167 and regs 8.09 to 8.11, a request for taxation of a trustee’s third party costs (such as legal expenses) could only be made by a trustee either on his or her own initiative or by the trustee at the request of the bankrupt or a creditor. Accordingly, if the respondent wanted to have the trustee’s third party costs taxed, he was told that he should direct his request to his trustee, Mr Burke, and that, in the meantime, the taxation would be limited to the trustee’s remuneration and certain non-professional disbursements.

19    By email dated 20 January 2011, the respondent replied to Mr Tomiczek’s email sent the previous day and claimed that it was “common ground” that the taxation under reg 8.09 of the trustee’s claim included his fees and disbursements and expenses (including legal costs).

20    By email dated 3 February 2011 from Mr Michael Parkinson (an Assistant Business Manager at ITSA), the respondent was informed that further advice had been obtained from ITSA’s legal section which mirrored the position set out in Mr Tomiczek’s letter dated 19 January 2011. He added that although under reg 8.10 a bill of costs was required to show separately the trustee’s professional fees as opposed to his or her disbursements and expenses, ITSA’s view was that “those disbursements and expenses would not include legal costs”. This was said to be based on the fact that under s 167 there was specific provision for the trustee to apply for a taxation of third party (e.g. legal) costs.

21    In an undated letter sent shortly after 22 February 2011, Mr Burke wrote to Ms Ashe (replying to a letter 22 February 2011 sent to him by her). According to the terms of Mr Burke’s letter, he enclosed a copy of a handwritten agreement with the respondent dated 1 December 2010 (that agreement was not put into evidence). Mr Burke then stated in his letter that, although the proposed consent orders were never entered, the document remained an agreement between the parties. He described the effect of the agreement as using the Regulations as they existed prior to 1 December 2010 as a “template for ascertaining the amount to be provided for costs and remuneration in the calculation of the amount required for an annulment”. In his letter, Mr Burke asserted that he had not made a claim for his remuneration to be fixed by a resolution of creditors or a committee of inspection, nor had he made a claim for his remuneration to be paid by commission or to be remunerated as prescribed by reg 8.08. He said that regs 8.09–8.11A could not be relied upon as authority for the conduct of the taxation process. In those circumstances, he said that it was necessary to obtain a Court order which expressly gave Ms Ashe authority to conduct the taxation and to make clear who would bear the costs of the taxation. Absent any such order, he said that he was committed to the process as set out in the agreement between the parties dated 1 December 2010. He indicated his willingness to enter into an agreement with Ms Ashe and the respondent which reflected the provisions of the regulations as in force prior to 1 December 2010 in respect of the conduct of the process of taxation of his remuneration. Among other further matters, Mr Burke also stated that he had not asked his legal advisers to prepare itemised bills of costs under s 167 of the Act and that he would not do so unless Ms Ashe advised him that she had been appointed to tax their costs, fees and disbursements. He added:

… the bankrupt can require my remuneration be taxed but not my solicitor and Counsel fees and costs to be taxed. Sub regulation 8.09(1) only refers to the request of a taxing officer to tax the claim for remuneration under section 162 of the Bankruptcy Act 1966. I note that regulation 8.10 requires disbursements and expenses to be shown separately in a bill of costs required for the purposes of regulation 8.09. I submit that the taxation hearing referred to in regulation 8.11 is limited to the authority for which the taxation hearing was convened. A hearing convened pursuant to a request under regulation 8.09 is a taxation of remuneration whereas a hearing convened pursuant to section 167 of the Act, (pre-1 December 2010), is the taxation of a bill of costs (sic) the services provided by a person in relation to the administration of the bankrupt estate, most typically legal costs. These are two distinct processes.

22    On 21 March 2011, Mr Tomiczek sent the respondent a detailed email confirming ITSA’s position, which it was said was taken after obtaining yet further legal advice. After recording the history of the matter, Mr Tomiczek set out ITSA’s position as follows:

(a)    it was a precondition for a taxation under regs 8.09 to 8.11 that the trustee make a claim for remuneration. Since Mr Burke said that he had not made any claim for remuneration the precondition was not satisfied; and

(b)    the Court orders dated 15 December 2010, which had not been entered, did not provide any authority for the taxation to be conducted.

23    In the light of these matters, and after apologising for the inconvenience caused, Mr Tomiczek said that, in the absence of an actual claim for remuneration by the trustee, or an enforceable Court order directing the taxation to take place, there was no basis on which the Inspector-General could progress the taxation under the legislative regime. He said that the trustee had advised that he intended to seek binding consent orders which would expressly give the Inspector-General authority to conduct the taxation but that as matters stood at present it was “beyond the purview of the [Inspector-General] to become involved in the taxation as contemplated by the agreement between you and the trustee”. It is notable that no reference was made at that point to there being any contractual arrangement between the Inspector-General and the respondent for the taxation to be conducted.

24    It is evident from the transcript of the hearing before Rares J on 30 March 2011 that a copy of Mr Tomiczek’s letter dated 21 March 2011 was in evidence. His Honour made direct reference at page 8 of the transcript to the reason why the Inspector-General had stopped work on the taxation as set out in that letter. The transcript records Rares J referring the parties to a registrar for a case management conference with a view to settling draft orders which his Honour would make later that day in order to obtain a payout figure so that the proposed annulment could take place. It is clear from page 11 of the transcript that Rares J contemplated that the proposed orders would deal with such steps as the giving of notices etc which the trustee must do in order to ensure that the Inspector-General “can proceed to a taxation of the trustee’s remuneration, in accordance with the Act, any other taxations that need to be initiated for that purpose” (sic) (emphasis added). I will return below to deal with the orders which were made by consent on 30 March 2011.

25    Also on 21 March 2011, the respondent responded and said that Mr Tomiczek’s letter contained several factual inaccuracies and that, in any event, the taxing officer had been appointed and had requested the trustee to deliver his bills of cost.

26    As will emerge below, contrary to the position stated by ITSA in this correspondence, the Inspector-General now says that it was factually incorrect for the trustee to assert that he had not made a claim for remuneration and that ITSA was also in error in proceeding on the basis of the trustee’s denial. The applicant says that no particular formality is required for a claim to be made for the purposes of reg 8.09. He says further that the trustee may have taken the view at that time that no claim had been made because he had not yet requested his lawyers to provide bills of costs for their legal services.

27    Furthermore, and contrary to the position repeatedly expressed in ITSA’s correspondence with the respondent, the Inspector-General effectively denies the significance of any distinction between the trustee’s personal remuneration and third-party costs, as well as now advancing an alternative claim that the respondent is contractually liable to bear the costs of the taxation.

28    As noted above, the matter came back before Rares J on 30 March 2011. After the matter was referred to a registrar for a case management conference and the settling of proposed orders by consent, his Honour made various orders by consent and also noted some other matters. Those matters included that the trustee had completed a calculation of the amounts to annul the respondent’s bankruptcy pursuant to s 153A. Those amounts were set out in the consent orders. They included an amount described as “Estimated trustee costs” in the sum of $690,190.53 and an amount described as “Estimated trustee remuneration” in the sum of $172,657.41. The total amount calculated by the trustee as being required in order to annul the bankruptcy was $2,393,856.82. The Court further noted that it was the intention of other members of the Coshott family to raise that total amount in order to annul the respondent’s bankruptcy. Another relevant matter noted by the Court was that, in order to facilitate the annulment, the trustee would by 8 April 2011 require an itemised bill of costs of the services provided by his solicitors and barrister to facilitate the taxation as contemplated by the orders.

29    By letter dated 5 April 2011, Mr Burke wrote to Ms Nash and referred to the consent orders made on 30 March 2011. After making express reference to paragraph 6(c) of those orders, he required itemised bills of costs to be prepared by Ms Nash and Counsel in order to facilitate the taxation by Ms Ashe. He said that this requirement was made pursuant to s 167 of the Act.

30    On 8 April 2011, itemised bills of costs relating to the services provided by the trustee’s legal advisers (both solicitor and Counsel) were provided to both ITSA and the respondent. On the same day, the trustee also provided a detailed bill of costs, which apparently totalled $717,547.95, of which $517,831.17 was for legal services and disbursements.

31    By letter dated 28 April 2011, the trustee wrote to the Inspector-General (copying in Ms Ashe and the respondent), asserting that his third party service providers’ bills of costs were being taxed under s 167 of the Act and that that was different from the taxation of his own remuneration. In effect, the trustee relied on the same distinction as that raised by the Inspector General on 19 January 2011 (see [18] above).

32    On 5 May 2011, Rares J made further orders by consent. The Court noted an agreement between the parties in the following terms:

The trustee has complied with all matters entitling him to have the taxing officer proceed, under Div 4 of Pt 8 of the Bankruptcy Regulations 1966 (Cth) as in force prior to 30 November 2010, with taxation of the bills lodged on 8 April 2011 as acknowledged in the taxing officer’s letter to the bankrupt and trustee dated 12 April 2011.

33    In the events that occurred, the respondent’s bankruptcy was not annulled as contemplated. On 3 August 2011, Mr Parkinson of ITSA wrote to the respondent. He referred to the taxation of the trustee’s remuneration which he said had been requested by the respondent on 28 October 2010 and was noted in the orders dated 30 March 2011. He said that those orders had been made on the presumption that the bankruptcy would be annulled on 30 June 2011 (subsequently varied to 22 July 2011) and that, as the annulment had not occurred, the Inspector-General considered that “no claim for remuneration by the trustee has been made, and no clear indication of when (or if) funds may become available to the estate, the taxation is to cease at this point in time”. It is notable that no reference was made to any contractual obligation underpinning the taxation.

34    The evidence relating to events which occurred after this point in time involving the trustee’s legal advisers is rather patchy. However, from the limited evidence provided to the Court, it appears that further steps were taken with an expectation that the respondent’s bankruptcy would be annulled later in 2011. Ms Nash wrote to ITSA on 5 September 2011 making reference to that expectation and she provided updated bills of costs from her firm and asked that the taxation continue. It appears that a similar course was taken by Mr Johnson of Counsel.

35    On 13 February 2013, Ms Ashe issued a certificate of taxation which allowed 94% of the total amount claimed by the trustee. On 5 March 2013, ITSA issued the respondent and other members of his family with an invoice dated 4 March 2013 for the cost of the taxation. The amount of the invoice is $144,962.12. That is the amount in dispute in the proceeding. There is no apportionment in that amount between taxation of the trustee’s remuneration and the fees charged by his legal advisers. In the invoice ITSA demanded that it be paid within 14 days in accordance with the Court orders made on 15 December 2010.

36    Ms Ashe issued both a certificate of taxation and detailed reasons for her determination. In paragraph 1 of her reasons, she claimed to have taxed the trustee’s remuneration pursuant to orders made by Rares J on 15 December 2010 and confirmed on 30 March 2011 (and as amended on 5 May 2011). She made further reference in paragraph 15 of her reasons to the consent orders made on 30 March 2011 “authorising the appointment and the process”. The certificate of taxation dated 13 February 2013 also made reference to her “having been appointed pursuant to orders made by his Honour Mr Justice Rares on 15 December 2010 and my instrument of appointment dated 17 January 2011 confirmed on 30 March 2011 (and as amended on 5 May 2011)”. As will emerge below, Ms Ashe’s understanding of the source of her authority to undertake the taxation is different from that which the applicant now advances. Ms Ashe made it abundantly clear in her reasons, as well as in the certificate of taxation, that the taxation conducted by her dealt not only with the trustee’s remuneration, but also his legal costs and expenses.

Legislative scheme summarised

37    It is common ground that the relevant provisions of the Act and Regulations are those in force immediately before 1 December 2010. Part II of the Act dealt with administration. The office of Inspector-General was created by s 11, which also described in general terms the powers and functions of that office. It is also notable that s 11(3) dealt with the inter-relationship between the Inspector-General and the Official Receiver. Section 11 provided as follows:

11    Inspector-General in Bankruptcy

(1)    For the purposes of this Act, there shall be an Inspector-General in Bankruptcy.

(2)    The Inspector-General has:

(a)    the general administration of this Act; and

(b)    the other powers and functions conferred or imposed upon him or her by this Act.

(3)    The Inspector-General may exercise any of the powers (including the power under section 18), and perform any of the functions, of an Official Receiver, in the same way as the Official Receiver.

(4)    The Inspector-General may by signed instrument delegate to an authorised employee all or any of the powers and functions of the Inspector-General under this Act.

38    Some of the functions of the Inspector-General were set out in s 12 of the Act, none of which are relevant to this proceeding. The Inspector-General’s functions also included the function (or duty) under s 162(4) of deciding the trustee’s remuneration in circumstances where the remuneration is not fixed by the creditors or the committee of inspection and the trustee has made an application in accordance with the regulations. It is also evident from the definition of “taxing officer” in s 167 of the Act (see further below) that the Inspector-General had the power to appoint a person as a taxing officer for the purpose of carrying out the function of taxing as contemplated under the legislative regime.

39    Section 15 of the Act dealt with Official Receivers. It was in the following terms, noting that the Act did not then contain a s 11(2):

15    Official Receivers

(1)    There is to be such number of Official Receivers as the Minister thinks necessary.

(3)    Each Official Receiver has such powers and functions as are conferred or imposed on an Official Receiver by this Act.

(4)    An Official Receiver may by signed instrument delegate to an authorised employee all or any of the powers and functions of the Official Receiver under this Act.

(5)    The Court may review an act done by an Official Receiver.

Note:    Section 303 explains who may apply to the Court for review of an Official Receiver’s action.

40    Division 2 of Part VIII of the Act dealt with remuneration and costs. Section 162, which dealt with the subject of a trustee’s remuneration, was relevantly in the following terms:

162    Trustee’s remuneration—general [see Table B]

(1)    Subject to section 161B, the remuneration of the trustee of the estate of a bankrupt may be fixed, from time to time, by resolution of the creditors or, if the creditors so resolve, by the committee of inspection.

….

(4)    Where the remuneration of the trustee is not fixed by the creditors or the committee of inspection, the trustee is to be remunerated as prescribed by the regulations.

…

(6)    Where a trustee receives remuneration for his or her services, a payment in respect of the performance by another person of the ordinary duties that are required by this Act to be performed by the trustee shall not be allowed in his or her accounts unless the payment was authorized by resolution of the creditors or by the committee of inspection.

(6A)    The trustee must, in relation to the trustee’s remuneration, give such notices to the bankrupt and creditors as are required by the regulations.

…

41    Section 167, which dealt with the taxation of costs, was in the following terms, noting that the Act did not then contain a s 167(2):

167    Taxation of costs

(1)    The trustee of a bankrupt’s estate may require a bill of costs for services provided by a person in relation to the administration of the estate to be taxed by a taxing officer. The trustee may make the requirement on the trustee’s own initiative, or at the request of the bankrupt or a creditor.

(3)    A person whose bill of costs is required to be taxed may deliver for taxation a bill containing detailed items or a bill for a gross sum.

(4)    Where a bill of costs for a gross sum is delivered for taxation, the person by whom the bill is delivered shall furnish the taxing officer with such details of the costs covered by the bill as the taxing officer requires.

(5)    The taxing officer shall satisfy himself or herself before passing a bill that the employment of the person in respect of the particular matters out of which the costs arise was duly authorized and was reasonable and necessary.

(6)    Where the trustee proposes to distribute a final dividend, the trustee shall, not later than 28 days before the date on which the trustee proposes to do so, request each person whose bill of costs is required to be taxed to give the person’s bill to a taxing officer.

(7)    If a person so requested to deliver his or her bill fails to do so within 28 days after receipt of the request, the trustee shall declare and distribute the dividend without regard to any claim of that person in respect of the matters as to which the bill was requested and in that case neither the trustee nor the estate of the bankrupt is under any further liability in respect of the claim.

(8)    A person interested may appeal to the Court from a decision of the taxing officer in allowing or disallowing a bill of costs or bill of charges or an item in such a bill.

(9)    In this section:

taxing officer means a person appointed by the Inspector General for the purposes of this section.

42    The definition of “taxing officer” is important as it necessarily contemplates that the Inspector-General has the power to appoint a person as a taxing officer for the purposes of the provision. This is relevant to the Inspector-General’s alternative claim in contract which is dealt with below.

43    The heading to Division 4 of Part 8 of the Regulations was “Trustee’s remuneration”, which may suggest that the Division dealt only with the trustee’s personal professional fees. In fact it went beyond that and also dealt with the trustee’s costs, disbursements and expenses. Regulation 8.09 was in the following terms (noting that the heading made clear that the subject matter of the regulation extended beyond remuneration of the trustee and included his or her costs):

8.09    Taxation of trustee’s remuneration and costs – preliminary

(1)    Where the trustee of the estate of a bankrupt claims remuneration under section 162 of the Act, the bankrupt or a creditor who is dissatisfied with the amount of the claim may, by notice in writing lodged within 28 days of being notified in writing or becoming aware of the amount of the claim, request a taxing officer to tax the claim.

(2)    The taxing officer must, promptly after receiving a request in accordance with subregulation (1), give notice in writing to the trustee to lodge a detailed bill of costs, in accordance with regulation 8.10, with the taxing officer within 28 days or such further period as the taxing officer may, in writing, allow.

(3)    On receiving the bill of costs, the taxing officer must give notice in writing of the date, time and place for the taxation, at least 5 days before the taxation, to the trustee and the person requesting the taxation.

(4)    Subject to subregulation (5), if the trustee fails to comply with a notice given under subregulation (2):

(a)    the trustee forfeits his or her right to disbursements and expenses; and

(b)    any amount that, apart from this subregulation, would have been applied as the trustee’s remuneration is to be applied for the benefit of the creditors.

(5)    A trustee who is aggrieved by the operation of subregulation (4) in respect of his or her claim, or intended claim, for costs may apply to the Court for relief, and the Court may:

    (a)    grant such relief; and

(b)    grant the relief on such terms, if any,

as it thinks fit.

44    Regulation 8.10 described what had to be included in the contents of a bill of costs required under s 167(1) or reg 8.09. Relevantly, it was in the following terms:

8.10    Bill of costs

(1)    A bill of costs required under subsection 167(1) of the Act or regulation 8.09 must:

(a)-(b)    …

(c)    show separately the trustee’s:

(i)    professional fees; and

(ii)    disbursements and expenses; and

(d)    in the case of a detailed bill of costs:

(i)    number each item consecutively; and

(ii)    in respect of each item – specify the date or dates on which the work referred to in the item was done, or the disbursement or expenditure referred to in the item was made, as the case may require.

…

45    Regulation 8.11 dealt with the hearing of a taxation and the functions of the taxing officer. It was in the following terms:

8.11    Taxation hearing

(1)    The trustee and the person requesting a taxation may attend, or be represented at, the hearing of the taxation.

(2)    At the hearing of the taxation the person requesting the taxation may object to an item in the bill of costs:

(a)    if the person has given notice in writing, at least 2 clear days before the hearing, of the nature and grounds of the objection; or

(b)    with the leave of the taxing officer — without having given such notice.

(3)    The taxing officer may disallow an item or part of an item, or reduce the amount of an item or part of an item, if:

(a)    he or she considers that:

(i)    the amount of the costs or disbursements in the item is unreasonably high; or

(ii)    any of the costs or disbursements in the item were incurred or made improperly, unreasonably, negligently or unnecessarily; or

(b)    in the case of any disbursements in the item — they are not proved, to the taxing officer’s satisfaction, by production of a receipt, voucher or similar document.

(4)    The taxing officer must, within 7 days of concluding the taxation, sign a certificate of taxation and send it to the trustee and the person requesting the taxation.

(5)    An account in respect of the fee for taxation must be sent to the person requesting the taxation, and the fee is payable by that person within 7 days of receipt.

(6)    In this regulation:

taxation means a taxation of costs for the purposes of subsection 167(1) of the Act or regulation 8.09.

46    Regulation 8.11A is an important provision. It dealt with who was liable to pay the costs of a taxation. It was in the following terms:

8.11A    Costs of taxation

(1)    If taxation under regulation 8.09 results in a reduction of at least 15% in the amount of a claim for remuneration, the trustee must meet the costs of the taxation.

(2)    Except in a case mentioned in subregulation (1), the person who asks for the taxation under regulation 8.09 must meet the costs of the taxation. (Emphasis added).

47    It is to be noted that although reg 8.09 refers to a bankrupt or a creditor making a “request” that a taxing officer tax a claim, reg 8.11A(2) refers to a person who “asks for” the taxation under reg 8.09.

Summary of applicant’s argument

48    Despite the contrary position repeatedly adopted by ITSA previously and as outlined above, the applicant now contends that the trustee had made a claim for remuneration at the relevant time. He says that in the absence of any prescribed form, a claim is simply a demand for something to be done and does not require any particular formality. In a case such as the present, it is said that it is sufficient that the bankrupt be aware of the amount of the claim (citing Wenkart v Pantzer (2003) 132 FCR 204 at [14]-[16]).

49    The applicant also contends that the effect of the relevant legislative scheme is that, while s 167 gave the trustee an option or discretion as to whether to require a taxation of the costs of a third party service provider, there was an obligation on the trustee to require a taxation in the case of his or her own services in the circumstances set out in reg 8.09(1). Moreover, the applicant says that the effect of the Full Court’s decision in Wenkart v Pantzer at [7] is that even though s 162 deals with the subject of the remuneration of the trustee, the taxation of both that remuneration and any third-party costs occurs under s 167 of the Act. The applicant says that the respondent’s emails dated 16 and 20 September 2010 both contain requests by the respondent for the trustee’s remuneration and the costs of his legal advisers to be taxed. That is because the respondent needed a full taxation of the trustee’s remuneration, costs and expenses in order to facilitate the proposed annulment of his bankruptcy.

50    The applicant further submits that reg 8.09 is limited in its terms to the trustee’s remuneration and does not explicitly extend to third party service providers, however, any request made by a bankrupt under that provision may subsequently encompass the taxation of a bill of costs not only by the trustee but also by third party service providers, as is reflected in the terms of reg 8.10(1)(c)(ii) (which refers to the need for a bill of costs required under s 167(1) of the Act or reg 8.09 to show separately the trustee’s professional fees and disbursements and expenses). In other words, although reg 8.09 applies only to the trustee’s remuneration and creates a right by a bankrupt or creditor to initiate a taxation of the trustee’s remuneration, the regulations deal with the situation where there eventuates a taxation which involves more than just the trustee’s remuneration.

51    The applicant further contends that because reg 8.09(2) contemplates a request for the provision of a detailed bill of costs within a 28 day period after the request, a period of two months or more might pass prior to the trustee delivering a bill of costs. It follows that, by the time the bill of costs is submitted, it may claim an amount which exceeds the original claim which was the subject of the request.

52    As to reg 8.11A, the applicant contends that the reference in reg 8.11A(2) to the person who has “asked for” the taxation (and who must bear the cost of the taxation) means the person who has called for or solicited the taxation. He contends that reg 8.11A should not be read as referring only to a taxation of the trustee’s remuneration which has been triggered by a request under reg 8.09 by the bankrupt or a creditor that a taxing officer tax the trustee’s claim, but as also extending to the taxation of any bill of costs which is produced after a request has been made under reg 8.09(1) and comes to be included in the taxation process, which could include a bill of costs prepared by a service provider to the trustee, as occurred here.

53    The applicant also argues that the Court orders made on 30 March 2011 merely compelled the parties to take the mechanical steps to progress the taxation which the respondent had first requested on 16 September 2010, i.e. those orders did not authorise the taxation, but merely regulated its exercise. In circumstances where reg 8.11A(1) did not apply, the applicant says that the respondent is liable to pay the costs of the taxation under reg 8.11A(2) because he was the person who asked for the taxation.

54    Finally, and only at the end of his oral reply, the applicant raised an alternative basis upon which he contends that the costs of the taxation must be met by the respondent. The alternative claim is based on contract. During the hearing the Court expressed its surprise that this alternative claim was being relied upon in circumstances where, as Counsel for the applicant acknowledged, there was no reference to it in the originating application, the applicant’s two written outlines of submissions or the applicant’s oral argument in chief. It was only when the Court asked during the course of the applicant’s oral reply whether the applicant’s case was based exclusively on the respondent’s alleged liability arising under the relevant legislative regime that the alternative claim in contract was raised.

55    Understandably, the respondent was also caught by surprise by the alternative claim being raised so belatedly and in this fashion. The parties were given an opportunity to file brief submissions in respect of the contract claim. As a model litigant, the applicant should have provided the respondent with adequate notice and particulars of this alternative claim. I made an order that the costs of this claim be the respondent’s costs in the cause.

56    In his subsequent additional submissions dealing with the contract claim, the applicant contends that a contract came into existence when the respondent executed a copy of the letter dated 28 October 2010 and returned it to Mr Karolyi. This is the letter described in [11] above, which Mr Karolyi wrote was sent on behalf of the Official Receiver. The Inspector-General claims that this document (which was signed and returned to Mr Karolyi by the respondent as requested) evidences an agreement between he as the Inspector-General and the respondent to the effect that he would appoint a taxing officer to conduct the taxation in consideration for which the respondent agreed that he would pay a fee for the taxation calculated at the stipulated amount and within the stipulated period. The alleged agreement was noted in [4] of the Court orders dated 15 December 2010 and the applicant claims that it was pursuant to the agreement that his delegate appointed Ms Ashe to be the taxing officer on 17 January 2011. He also claims that the certificate of taxation which subsequently issued made plain on its face that the taxing officer was acting under the appointment made on 17 January 2011.

57    As to the subsequent events which saw the Inspector-General not progressing the taxation, which he accepts may have amounted to a breach of the agreement, the Inspector-General submits that there is no suggestion that the contract was terminated either by acceptance of repudiation or by abandonment. He says that the conduct is not admissible to negate the proposition that a contract came into existence at an earlier time on the terms contended, citing Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570.

58    As to the issues raised by the respondent concerning the Inspector-General’s power to enter into a contract of the kind which is alleged to exist here, the Inspector-General in his written reply submissions argued as follows. First, as to the issue of his standing to enter into such a contract, the applicant says that such a power is implicit in s 11 of the Act, which confers responsibility on his office for the general administration of the Act. He contends that this must necessarily carry with it a power to enter into binding agreements in order to carry out his functions.

59    Secondly, on the issue of the Court’s jurisdiction to hear the claim in contract, the applicant says that such jurisdiction arises under the Court’s accrued jurisdiction and cites Moorgate Tobacco Company Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 472, 476 in support.

60    Thirdly, as to the respondent’s claim that there is no binding contract because he was merely exercising his statutory right to request a taxation of the trustee’s remuneration, the applicant relies upon the note in the orders made by consent on 15 December 2010 to the effect that the respondent had made a representation that an arrangement had been made for the taxation and that he had agreed to pay the taxing officer’s fees within the specified time. The applicant acknowledges that he was not a party to the proceedings but says that the respondent should be held to his agreement to pay their fees concerned.

Summary of respondent’s argument

61    The respondent’s case may be summarised as follows. First, he says that neither of the requests made by him on 16 and 20 September 2010 was a request made pursuant to reg 8.09 and therefore cannot provide a proper basis for any liability under reg 8.11A(2). Secondly, the respondent relies upon Mr Burke’s denial that he had made a claim for remuneration at the relevant time, a denial which was then taken up and relied upon by ITSA in its correspondence with the respondent. Thirdly, he argues that the express reference in reg 8.09(1) to s 162 means that the regulation does not extend to a taxation of costs of a third-party service provider as referred to in s 167. He says that the trustee has a discretion under s 167 whether to require such a third party to provide a bill of costs to be taxed by a taxing officer. Relying on reg 8.11(5), he says that since the only person who can request the taxation of a third-party service provider’s costs is the trustee, the requirement under the subregulation to send an account in respect of the fee for taxation “to the person requesting the taxation” can only be a reference to the trustee. The trustee is then liable to pay the costs of the taxation within 7 days of receipt. Fourthly, the respondent says that a distinction has to be drawn between taxation of the trustee’s remuneration and the costs of his legal advisers. In particular, he says:

(a)    the taxation of the trustee’s bill of costs was pursuant to the Court orders made on 30 March 2011; and

(b)    the taxation of the costs of the trustee’s legal advisers was made at the request of the trustee as is said to be reflected in the trustee’s letter dated 5 April 2011 to his solicitor in which he asked the legal advisers to prepare bills of costs so that they could be taxed pursuant to s 167.

62    In support of his argument that a distinction needs to be drawn between taxing the trustee’s remuneration as opposed to the costs of his legal advisers, the respondent relies on the trustee’s letter dated 28 April 2011 to the Inspector-General where the trustee expressly stated that there was a difference between the taxation of his remuneration and that of the costs of his legal advisers.

63    Fifthly, the respondent submits that if the applicant is correct in the emphasis he places on the distinction between taxing the trustee’s remuneration as opposed to the costs of third party service providers, there is no proper basis on which the Court could apportion the total cost of the taxations to those two different subject matters because the taxation invoice does not differentiate between them.

64    Finally, because neither taxation was carried out at his request, the respondent says that he cannot be liable for their cost under the relevant legislative regime. He disputes that any significance attaches to the use of the phrase “asks for” in reg 8.11A(2) and submits that the relevant test is to ask who was the person who requested the taxation.

65    As to the applicant’s alternative claim in contract, the respondent filed supplementary written submissions, which may be summarised as follows:

(a)    the applicant has no standing and/or power to enter into any contracts, let alone a contract to provide his services for a fee because the Act makes no provision for any such power and the applicant is a creature of statute;

(b)    consequently, the Court has no jurisdiction to entertain the claim because it does not arise under the Act; and

(c)    in any event, no enforceable contract came into existence because:

i.    the applicant lacked the capacity to enter into a binding contract;

ii.    the respondent simply sought the exercise of the statutory right;

iii.    there was no unconditional offer or unconditional acceptance; and

iv.    there was no consideration in circumstances where the applicant did not act on the respondent’s request and only proceeded to taxation pursuant to a Court order.

Consideration

66    For the following reasons, I consider that the respondent is liable under the relevant legislative scheme to pay the full costs of the taxation i.e. $144,962.12. I do not accept that any liability arises under the applicant’s alternative claim in contract. It is convenient to deal with both matters separately.

(a)    Liability to pay the costs of the taxation under the legislative scheme

67    First, the proper construction of the relevant provisions needs to occur in the context of the well-established proposition that a “trustee’s right to remuneration for his or her own efforts, as distinct from reimbursement of outgoings, is not conferred by the general law” (see Adsett v Berlouis (1992) 37 FCR 201 at 210). Where a trustee in bankruptcy is appointed and there is no prior agreement to act gratuitously, the Act “assumes the existence of a right to be remunerated” and s 162 “provides a mechanism for fixing the quantum of the remuneration” (see Adsett v Berlouis at 210).

68    Secondly, the concepts of remuneration and outgoings are distinct under the relevant legislative scheme but they are also grouped for the purposes of particular provisions. As the Full Court emphasised in Adsett v Berlouis at 210, for some particular legislative provisions (such as s 109 of the Act), the trustee’s remuneration is specifically included amongst the “costs, charges and expenses of the administration of the bankruptcy”. Such provisions were described by the Full Court there as “special provisions” which give “an extended meaning to costs, charges and expenses” and they:

do not remove the conceptual dichotomy between remuneration and outgoings. Rather, they group the two concepts for the limited purposes of the relevant sections.

69    Thirdly, notwithstanding that there is no express reference in s 167 of the Act to the trustee’s remuneration, as Branson J found in Wenkart v Pantzer (2006) 223 ALR 384 at [86], the taxation of a bill of costs of a trustee in accordance with reg 8.09 is a taxation under s 167 of the Act.

70    Fourthly, I accept the applicant’s contention that although reg 8.09(1) was limited in its express terms to (relevantly) a bankrupt requesting a taxing officer to tax the trustee’s claim for remuneration under s 162 of the Act, the legislative scheme envisages that such a request may set in train a course of events which can lead to the taxation not only of the trustee’s remuneration but also the trustee’s disbursements and expenses. Whether or not the taxation is so expanded will depend on whether the trustee in his or her discretion determines under s 167 of the Act to require the taxing officer to tax a bill of costs of a third-party service provider. That requirement can arise on the trustee’s own initiative or at the request of the bankrupt or a creditor. It is important to note the careful distinction drawn in s 167 between the trustee’s requirement and a request made by the bankrupt or a creditor that such a requirement be made. The legislative scheme is one which contemplates that, although a taxation may be initiated at the request of a bankrupt or creditor under reg 8.09, the taxation might be expanded beyond that initial scope so as to encompass a taxation of a third party’s costs at the behest of the trustee.

71    Fifthly, I consider that the reference in reg 8.11A(1) to “taxation under reg 8.09” encompasses the entirety of a taxation which has been initiated under reg 8.09 but may subsequently be enlarged to include taxation of the trustee’s disbursements and expenses, including the cost of his or her trustee’s legal advisers, in the manner described above. Whether or not a particular taxation extends to include the taxation of the bills of costs of party service providers to the trustee depends on whether the trustee imposes such a requirement. The bankrupt or a creditor can request the trustee to impose such a requirement but they cannot compel that outcome, in contrast with the power they have under reg 8.09 to compel a taxing officer to tax the trustee’s claim for his or her personal remuneration under s 162.

72    Sixthly, although the reason for using the phrase “asks for” in reg 8.11A(2) as opposed to the use of the term “requests” in reg 8.09(1) is somewhat obscure, the choice of the different terminology in reg 8.11A(2) may have been intended to underline the fact that a taxation initiated by a request under reg 8.09 could subsequently extend to cover not only the trustee’s remuneration but also the bills of costs of the trustee’s third party service providers. Thus although the bankrupt or a creditor can make a request to the trustee to expand a taxation so as to cover the professional fees of third party service providers, they cannot compel that expansion. Nevertheless, they bear the costs of any such expanded taxation (as well as a taxation confined to the trustee’s personal remuneration), unless the taxation results in a reduction of at least 15 per cent, in which case the trustee bears the costs of the taxation. In circumstances where reg 8.11A is intended to determine the costs of a taxation which might be confined to the taxation of the trustee’s personal remuneration, but also extend at the trustee’s behest to encompass the costs of third party service providers, it may have been thought appropriate to use language other than “requests” in that particular regulation.

73    Seventhly, although the evidence is not entirely satisfactory (particularly because it did not include a copy of the trustee’s email containing the claim as referred to in the respondent’s email dated 16 September 2010 which is described in [7] above), it is clearly the case that at all relevant times the respondent proceeded himself on the basis that the trustee had made a claim for remuneration and also that a taxation was required of both that remuneration and the trustee’s costs and disbursements. The respondent told ITSA that he had received an email from the trustee setting out his claim for remuneration and the cost of his legal advisers. This matter provided the foundation for the respondent’s request for a taxation made in both his emails to ITSA dated 16 and 20 September 2010. Both those requests sought a taxation not only of the trustee’s remuneration but also of the costs of his legal advisers. The respondent wanted the taxation to go beyond the trustee’s personal remuneration because that was necessary for him to facilitate the proposed annulment of his bankruptcy. I find that the trustee did make a claim for his remuneration and the costs of his legal advisers in the email to which the respondent referred. I accept the applicant’s submission that such a claim requires no particular formality.

74    Eighthly, for reasons which are not entirely clear, the trustee subsequently denied that he had made any claim for his remuneration. ITSA then seized on that denial in declining to progress the taxation which had been requested by the respondent. The applicant now says that this was wrong on the part of both the trustee and ITSA. I agree. This dramatic change of position does not reflect well on the applicant as chief executive officer of ITSA but no issue of estoppel was raised by the respondent. The applicant’s conduct can appropriately be dealt with by an order for costs in the proceeding. It should not stand in the way of the proceeding being determined on the basis of the evidence as presented to the Court, limited as that evidence is in some respects.

75    Finally, I accept the applicant’s submission that, contrary to the position taken by both Ms Ashe and the respondent, the taxation was not conducted pursuant to the Court’s orders and those orders merely regulated the exercise of the taxation pursuant to the legislative scheme.

(b)    Liability to pay the costs of the taxation under contract?

76    In my opinion, different considerations arise in respect of the applicant’s alternative claim based on contract. Strictly speaking it is not necessary to determine this claim in view of the acceptance of the applicant’s primary case. For completeness, however, I would indicate that I would not accept the alternative claim for the following reasons.

77    First, I strongly doubt that that there is any power under the relevant legislative scheme to require a bankrupt or creditor to enter into a contract and agree by that contract that he or she will pay the costs of taxation as a matter of contractual obligation and independently of any relevant legislative obligation. The office of Inspector-General and that of Official Receiver are creatures of statute, both being created respectively under ss 11 and 15 of the Act, as outlined above. The powers and functions of both offices are also set out in the Act and Regulations. I accept that it was implicit in the definition of “taxing officer” in s 167(9) of the Act that the Inspector-General had the power to appoint a person to be a taxing officer for the purposes of taxing costs under s 167. I do not accept, however, that the Inspector-General had any power, either express or implied, under the legislative regime to require a bankrupt or a creditor who wishes to initiate a taxation under s 167 to enter into such a contract as a condition, in effect, of the Inspector-General appointing a taxing officer to enable the taxation to occur. In my opinion, the liability to pay the costs of a taxation conducted under s 167 is fixed by the legislation itself: there is no legal capacity for the Inspector-General to seek to create a separate and independent foundation for such liability under contract law.

78    The doctrine of ultra vires as it applies to statutory corporations and entities requires that, subject to a contrary legislative intention, whatever may fairly be regarded as incidental to or consequential upon what is provided in enabling legislation ought not to be held to be ultra vires (see Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473 at 478 and 481). It may be accepted that, in accordance with this doctrine, although there is no express power conferred upon the Inspector-General to enter into contracts, he or she is entitled under the incidental or ancillary power to enter into contracts which are incidental to the performance of the statutory functions imposed upon that office.

79    That is not to say, however, that the incidental power is without limitations. I do not doubt that the doctrine applies to provide the Inspector-General with implied power to enter into contracts to enable his or her legislative functions to be performed, which would include, for example, entering into contracts with a telecommunications provider to provide telephone and other telecommunications services or to buy such office equipment as is necessary to enable those functions to be carried out efficiently and effectively. In my view, however, the doctrine does not apply to empower the Inspector-General to enter into contracts which, in effect, require a bankrupt or creditor to bear the costs of a taxation as a matter of contract law, as opposed to bearing such liability by operation of the legislative regime itself. In my view, the legislation provides the only legal source of the obligation to pay such costs.

80    Secondly, even if it were assumed for the sake of argument that the Inspector-General had such a power, it appears that the power was not exercised on behalf of that office in relation to the alleged agreement dated 28 October 2010, but rather on behalf of the Official Receiver, as is expressly stated in Mr Karolyi’s letter. In my view, it is very doubtful that the Official Receiver had any power to enter into such a contract in circumstances where the legislation does not confer any function or power on that office in relation to the taxation of the trustee’s remuneration or the fees of a third-party service provider. I do see any scope for s 11(3) of the Act to apply to overcome this lacuna.

81    Thirdly, even if I am wrong in the reservations I have expressed above and there was power for either the Inspector-General or the Official Receiver to enter into such a contract, I do not consider that the letter dated 28 October 2010 from Mr Karolyi which was signed and returned by the respondent constitutes an enforceable contract (the relevant parts of the letter are set out in [11] above). That is because I do not consider that, objectively determined, there was an intention on the part of either party to enter into legal relations of a contractual nature. Rather, in my view, Mr Karolyi’s intention, objectively determined, was to obtain an acknowledgement from the respondent of his potential liability to bear the costs of the taxation by operation of the relevant legislative regime. It is notable in this context that in his letter Mr Karolyi not only summarised the relevant aspects of the legislative regime bearing upon the taxation of the trustee’s remuneration and costs, but also attached copies of the relevant regulations (regs 8.09-8.11A). There is nothing in the respondent’s reply letter dated 28 October 2010 (the relevant parts of the letter are set out in [12] above), to indicate that he had any intention, objectively determined, of entering into a contract with either the Official Receiver or the Inspector-General. Indeed, the contents of his letter all point to his belief being that the taxation was to be conducted in accordance with the relevant provisions of the legislative regime and not under a separate contractual arrangement.

82    For these reasons, although I do not accept the applicant’s alternative claim in contract, I consider that the applicant is entitled to the relief he seeks and orders should be made accordingly.

83    As to costs, my preliminary view is that, despite the respondent’s failure in the proceeding he should not have to bear the applicant’s costs. That is for three reasons. First, the arguments advanced by the applicant at the hearing in support of his case based on the relevant legislative regime are inconsistent in various respects with the position adopted by ITSA and communicated to the applicant before the proceedings were commenced. Secondly, the applicant has not been successful in his alternative claim in contract. Thirdly, the application raises issues of general principle and construction which, no doubt, are of particular interest and concern to the Inspector-General and for which the respondent should not have to bear the costs. It should also be noted that I previously ordered that the respondent’s costs in relation to the applicant’s belated case in contract should be his costs in the cause. Needless to say, because the respondent is self-represented no order for costs should be made in his favour.

84    My preliminary view is that there should be no order as to costs but I will give the parties an opportunity to seek to agree costs and if they are unable to do so I will order that each should by 18 February 2014 file and serve their respective proposed orders as to costs, supported by a written submission not exceeding two pages in length. I propose to finalise orders for costs on the papers and without a further oral hearing.

Associate: