Federal Court of Australia

Hurst-Meyers v Hoy (No 2) [2026] FCA 1598

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s interlocutory application lodged for filing on 16 October 2026 be dismissed.

2.    There be no order as to the costs of the interlocutory application.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

1    On 20 December 2024, following a hearing on 17 December 2024, the Court dismissed the appeal that was the subject of this proceeding and ordered that the appellant pay the respondent’s costs of the appeal: Hurst-Meyers v Hoy [2024] FCA 1499. The Court further ordered that, in the absence of agreement, those costs be determined by a Registrar on a lump sum basis. The orders were authenticated on 20 December 2024 and, by operation of r 39.32(3) of the Federal Court Rules 2011 (Cth) (as then in force), were taken to be entered on 3 January 2025, the 14th day after the day on which they were authenticated.

2    The appeal was brought by Ralph George Noel Nancy Hurst-Meyers, the appellant and bankrupt, from orders of the Federal Circuit and Family Court of Australia dismissing his application for review of the sequestration order made by a Registrar on the petition of Gavin Robert Hoy. Mr Hoy was the respondent to the appeal and the petitioning creditor. The protracted procedural history is described in the 2024 decision. The lump sum costs assessment is presently pending before a Registrar.

3    By an interlocutory application lodged for filing on 16 October 2026, Mr Hoy seeks orders that Order 2 be replaced by an order that his costs of the appeal be taxed and paid from the appellant’s bankrupt estate in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth), and that Order 3 be vacated. In support of his application, Mr Hoy relies on the affidavit of his solicitor, Mitchell John Evelyn, affirmed on 16 October 2026.

4    The application is made on the basis that the proposed variation would permit Mr Hoy to recover his appeal costs from the bankrupt estate with the priority provided by s 109(1)(a) of the Act. The trustee of the appellant’s bankrupt estate, who was not a party to this proceeding, consents to the orders proposed by Mr Hoy.

5    Mr Hurst-Meyers does not consent to the proposed orders. Among other matters, he disputes the proposed recourse to the estate and contends that the amount of the costs claimed should be further scrutinised. Mr Hurst-Meyers advances those matters, amongst other matters, in an email he sent to the Registrar who is undertaking the costs assessment. The Registrar brought Mr Hoy’s interlocutory application to the attention of my Chambers.

6    On 21 October 2026, my Chambers informed the parties that I proposed to determine the interlocutory application on the papers and invited them to notify my Chambers if they wished to be heard on that course. Mr Hurst-Meyers requested an opportunity to respond to the application and supporting affidavit. In light of the basis upon which the application is to be dismissed, a hearing or further submissions are unnecessary. The dismissal does not involve the determination of any issue adversely to Mr Hurst-Meyers, and the matters identified in his response do not bear upon the basis of the dismissal.

7    In those circumstances, acceding to Mr Hurst-Meyers’ request would occasion further cost and delay without serving any useful forensic purpose. That course would not facilitate the just resolution of the application as quickly, inexpensively and efficiently as possible, consistently with the overarching purpose stated in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). I have therefore determined the application on the papers. The application will be dismissed for the following reasons.

8    The orders of 20 December 2024 finally determined the appeal and Mr Hoy’s entitlement to costs. The present application was made almost two years later. Rule 39.04 of the Rules (as then in force) permitted the Court to vary or set aside an order before the order had been entered. The orders were taken to be entered on 3 January 2025 pursuant to r 39.32(3). No application to vary or set the orders aside was made before that date. The evidence in support of this application does not explain why the form of order now sought was not pursued when the appeal was determined. Mr Evelyn’s affidavit records that the parties did not make submissions concerning costs at the hearing, but does not otherwise explain the delay. The submissions filed by Mr Hoy expressly sought that the appeal be dismissed with costs. Upon delivery of judgment, which included an order that in the absence of agreement, Mr Hoy’s costs be determined by a Registrar on a lump sum basis, Mr Hoy did not seek to relist the proceeding until the present application was lodged for filing on 16 October 2026.

9    Once the final orders disposing of the appeal were entered, the Court was functus officio, subject to any specific power conferred by statute or the Rules and the limited recognised exceptions to the principle of finality. Entry of the orders conclusively recorded the Court’s disposition of the appeal. The slip rule permits an accidental slip or omission to be corrected so that the record reflects the Court’s intention but does not permit the Court to reconsider or alter the substance of the result. See DJL v The Central Authority [2000] HCA 17; 201 CLR 226 at [33]-[38], [43]-[45], [50] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); Burrell v The Queen [2008] HCA 34; 238 CLR 218 at [18]-[22] (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ).

10    The proposed variation is not necessary to perfect, correct or give effect to the orders that the Court intended to make. The orders entered accurately record the Court’s determination that the appellant pay the respondent’s costs of the appeal, with those costs to be determined by a Registrar on a lump sum basis if not agreed. There is no suggestion of a clerical error, accidental slip or failure such that the orders do not reflect the Court’s intention.

11    Nor is the proposed variation merely procedural. It would replace the existing costs order requiring the appellant to pay the respondent’s costs of the appeal with an order expressly requiring those costs to be taxed and paid out of the bankrupt estate in accordance with s 109(1)(a) of the Act. That would determine, or at least appear to determine, the application of s 109(1)(a) to the appeal costs and would affect the administration of the estate. The trustee’s consent does not make that variation necessary, particularly where the appellant opposes it.

12    Section 109(1)(a) requires the trustee, before applying the proceeds of the bankrupt’s property in making any other payments, to apply those proceeds in the prescribed order, in payment of “the taxed costs of the petitioning creditor”. Whether the respondent’s appeal costs answer that statutory description is a question arising in the administration of the estate. The existing costs orders do not purport to determine that question. It is neither necessary nor appropriate to reopen the final orders in this appeal in order to determine that question now.

13    The Court’s powers to vary final orders after entry are confined and must be exercised consistently with the public interest in the finality of litigation: Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57 at [77] (Gray, Lander and Katzmann JJ); Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 at [6] (Gordon J). Even if power to make the proposed variation is available under r 39.05 of the Rules, the present circumstances do not justify its exercise. The substantial and unexplained delay, the absence of any error in the existing orders, and the substantive effect of the proposed variation weigh against reopening the orders. So too does the availability of determining the issue now raised under the statutory regime governing the administration of the estate.

14    This conclusion does not determine whether the respondent may establish an entitlement to payment under s 109(1)(a) of the Act, nor whether the appeal costs answer the statutory description of the taxed costs of the petitioning creditor. Those questions do not require determination for the purposes of this application.

15    The sequestration order made by the Registrar in the proceeding below already provided that the petitioning creditor’s costs of that proceeding be taxed and paid from the appellant’s estate in accordance with s 109(1)(a) of the Act. The present application concerns the separate costs of the appeal. The earlier order does not make it necessary to reopen the final orders made in this Court or determine whether the appeal costs answer the statutory description.

16    There will be no order as to the costs of this application. Although the respondent has not succeeded, the application was brought with the consent of the trustee of the appellant’s bankrupt estate. It was determined on the papers without the parties being required to incur the costs of a hearing. In those circumstances, the appropriate course is for each party to bear their own costs of the application.

17    The interlocutory application will be dismissed.

Associate:

Dated:    26 October 2026