Case: House v The King [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: cited
In the context of the issues raised on the appeal, the respondent contends that the above considerations provide a basis for the findings of Federal Magistrate Coker and result in the exercise of a discretion, conferred by s 30 of the Act, to fix the costs, charges, expenses and remuneration of the trustee on a basis thought appropriate. Consistent with the familiar passage in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 (and particularly the passage at p 505 of the judgment of their Honours Dixon, Evatt and McTiernan JJ), the exercise of the discretion ought not to be disturbed. The respondent in oral submissions also relied upon s 179 of the Act as the source of the power to fix the amount of the costs (expenses and remuneration) at $15,000.00. The appellant contends that s 179 was not relied upon by the respondent in the proceedings before Federal Magistrate Coker; was raised for the first time in oral submissions in the hearing of the appeal; and the respondent ought not to be allowed to now rely upon s 179 as that section contemplates a particular process which is inconsistent with the conduct of the respondent's application and had the respondent relied upon s 179 , the appellant would have conducted its response to the application differently. Supplementary written submissions have been directed to the question of s 179. 7 In resolving these competing contentions it has been necessary to closely examine considerable material concerning the precise chronology of events inherent in the administration and the various propositions put to the trustee and the trustee's response. In dealing with the questions raised on the appeal, it is not the role of the appellate court to resolve contested questions of fact. However, in determining whether the exercise of a power or discretion (if conferred) miscarried, it is necessary to look at the evidence before Federal Magistrate Coker and consider the material in the context of the matters that influenced his Honour to exercise the power in a particular way or to reach particular conclusions. 8 The appellant seeks leave to amend the notice of appeal and relies upon two affidavits of James Nicholas Conomos filed 23 November 2005 and 29 November 2005 respectively which exhibit an amended notice of appeal and a further amended notice of appeal. Although Mr Laurie, counsel for the respondent, objects to the lateness of the amendments, Mr Laurie concedes that the respondent has suffered no prejudice by reason of the late notice of the proposed changes. The proposed changes to the amended notice of appeal are not significant. Accordingly, leave is given to amend the notice of appeal in terms of the document described as Exhibit 'JNC1' to the affidavit of James Nicholas Conomos filed on 29 November 2005. 9 On 20 June 2003, the Registrar of the Federal Magistrates Court made an order for the sequestration of the estate of Ms Townsend. The application was made by Ms Townsend's former partner as a result of an unpaid costs order made against Ms Townsend in family law proceedings. It seems the solicitors for Ms Townsend's former partner were instructed to take all necessary steps to recover the amount of the assessed costs. The affidavit evidence suggests that Ms Townsend's former partner did not anticipate that such action would result in a sequestration order. Nevertheless, the amount of the costs remained unpaid after service of the certificate, service of a bankruptcy notice and service of an application for a sequestration order. The costs remained unpaid at the date of the hearing of the application. At the hearing, Ms Townsend contended that she was solvent as the value of her assets exceeded the amount due and payable to her creditors (including the amount of the costs order). 10 It is not clear whether any undertaking to discharge the debts within a particular period, or, by recourse to support from a third party, supported by an affidavit to that effect, was offered as an element of a request for an adjournment of the hearing of the application. In any event, the Registrar was satisfied that there was a proper basis for making a sequestration order presumably on the ground that the material in support of the application and the history of a failure to pay or compromise the unpaid costs claim established that Ms Townsend could not pay her debts as and when they fell due for payment notwithstanding the contended surplus of assets over liabilities.