The High Court ordered that the Official Assignee’s costs of opposing Kenneth Joyce’s application be paid in the bankruptcy, treating them as costs incurred in connection with the Official Assignee’s successful application to extend the bankruptcy. The court also awarded the Official Assignee the costs of the extension application in the bankruptcy.
In a ruling delivered on 29 March 2023, Mr Justice Mark Sanfey addressed costs after his 3 February judgment on two applications: the Official Assignee’s application to extend Joyce’s bankruptcy under section 85A(4) of the Bankruptcy Act 1988, as amended, and an application for relief issued by Joyce on 18 November 2022.
The earlier judgment granted the extension application and indicated that Joyce’s application would be dismissed. The judge had proposed awarding the Official Assignee the costs of the extension application, with no order as to costs on Joyce’s application, and invited written submissions on costs.
The Official Assignee submitted that he had to respond separately to Joyce’s application, which was heard on 5 December 2022. Joyce, who represented himself in both applications, accepted that much of his application was misconceived and ultimately did not press it, the ruling said. The Official Assignee argued that he should recover the additional costs in the bankruptcy.
Justice Sanfey said the applications had been dealt with together, but Joyce’s application had generated costs beyond those of the extension application. Without a separate costs order, the Official Assignee could not recover those costs. The judge considered that the Official Assignee had succeeded in opposing Joyce’s application, but saw no realistic basis for ordering Joyce to pay personally.
The judge noted that ordering the costs in the bankruptcy meant creditors would bear the expense. He nevertheless considered Joyce’s application a response to the extension application and directed that the Official Assignee’s costs of resisting it be costs in the bankruptcy, incurred in connection with prosecuting the extension application. He expected those costs to be small, noting that counsel’s attendance on 5 December was also required for the extension application listed that day.