The Supreme Court has ordered that the respondent is entitled to the costs of Michael Wymes’s appeal in his bankruptcy case, applying the usual rule that costs follow the event.
In a costs ruling delivered on 14 September 2021, the Court said the appeal had challenged an earlier order by Pilkington J. The underlying issue was whether a debtor could commit an act of bankruptcy under the Bankruptcy Act 1988 after challenging the creditor’s summons.
The Court had decided that such an act of bankruptcy could occur despite a statutory challenge to the summons. It rejected Wymes’s argument that the relevant provisions were ambiguous or inconsistent. The practical effect was that the bankruptcy adjudication was not annulled.
The respondents sought the appeal costs, arguing they had been entirely successful and that no circumstances displaced the statutory presumption in favour of costs. Wymes argued that the Court should depart from the usual rule because the appeal clarified the law on challenges to bankruptcy summonses and raised an issue of general public importance.
The Court accepted that the issue was of general public importance. But it said that alone did not determine who should bear the costs. Wymes had sought to overturn his own bankruptcy adjudication and therefore sought a private personal advantage. The Court concluded that the appeal did not meet the test for public interest litigation identified in *Dunne v. the Minister for the Environment (No. 2)*.
The Court also noted that the issue was difficult and had appeared in older authorities without later legislative clarification. It acknowledged the assistance provided by Wymes’s written and oral submissions, but found no basis to depart from the normal rule. The ruling addressed costs; it did not annul the bankruptcy adjudication.