mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cassegrain v CRK Engineering [2008] NSWSC 457
Outcome: cited
for Mrs Coshott submitted that a further extension of time for compliance with the Bankruptcy Notice should be allowed in terms of the amended order sought in the amended application by reference to the following considerations: (1) The discretion to grant an extension of time for compliance is 'at large': Re Taylor at 379; Byron at 270. (2) While there is no stay in place, the application for a stay of proceeding No. 4000/09 having been dismissed on 27 November 2009, it was dismissed on jurisdictional, rather than discretionary, grounds. Considerable weight should only be given to the absence of a stay of the underlying judgment ( Byron at 270G; Geard (in the passage quoted in Byron at 269G)), if the court that granted the judgment had jurisdiction and power to grant a stay. In circumstances such as the present, where the court that issued the judgment has determined that it has no jurisdiction to grant a stay, the absence of a stay should, in relation to the discretion under s 41(6A) , be viewed as carrying no weight, rather than 'considerable weight'. (3) Only a short amount of time is likely to be involved in any extension of time, as the proceeding in the District Court is of limited scope. (4) If Mrs Coshott succeeds in the District Court to any extent, she will be entitled to an order setting aside the Bankruptcy Notice: Halstead v Westpac Banking Corporation [1991] FCA 424 ; (1991) 31 FCR 337 at 355. (5) Reference was made to the merits of the appeal while acknowledging the reluctance of courts to enter upon that area, save in the particular circumstances referred to by Lehane J in Byron at [36] above. The thrust of the submission was that the appeal had merit because: (a) There was no basis for the costs assessor to proceed to determine an amount payable by Mrs Coshott but refuse to determine an amount payable by Mr Coshott; (b) the Legal Profession Act does not give a costs assessor any power to, in effect, alter the terms of an assessment that are referred to him or her; (c) the costs assessor acted ultra vires ; (d) the broad brush approach taken by the costs assessor to assessment was not permissible: Cassegrain v CRK Engineering [2008] NSWSC 457 including the passages extracted therein from Kennedy Miller Television Pty Ltd v Lancken (unreported, Supreme Court of New South Wales, August 1999, Sperling J); (e) inadequate reasons are an error of law: Cassegrain at [86]. (6) The Bankruptcy Notice was served after the District Court proceeding No. 2872/09 to appeal the Certificate of Determination had been commenced. Whilst Mr Barry was entitled to do this (there being no stay in place), it is relevant to the discretion that Mr Barry chose to issue his Bankruptcy Notice in circumstances where he knew that the Certificate of Determination, and hence the judgment, was under challenge. This is not a situation of the appeal being launched in response to a bankruptcy notice. Indeed, it is arguably the reverse.
Case: Doyle v Hall Chadwick [2007] NSWCA 159
Outcome: referred to
for Mrs Coshott submitted that the fact that it was not sought to set aside the judgment in proceeding No. 4000/09, but rather the underlying certificate of determination which had merged into the judgment is of no import because the judgment is liable to be set aside or varied if the certificate on which it is based is set aside or varied. Reliance was placed on what was said by Hodgson JA (with whom Mason P and Campbell JA agreed) in Doyle v Hall Chadwick [2007] NSWCA 159 at [48] to [53]. What was said there was said in relation to s 208J(3) of the Legal Profession Act 1987 (NSW), the equivalent provision in the Legal Profession Act being s 368(5). I agree with this submission. So understood, the fact that Mrs Coshott has filed a notice of motion seeking to amend the summons in proceeding No. 2872/09 so as to add a claim that judgment in proceeding No. 4000/09 be set aside (see [8] above), is arguably irrelevant.
Case: Halstead v Westpac Banking Corporation [1991] FCA 424 ; (1991) 31 FCR 337
Outcome: cited
for Mrs Coshott submitted that a further extension of time for compliance with the Bankruptcy Notice should be allowed in terms of the amended order sought in the amended application by reference to the following considerations: (1) The discretion to grant an extension of time for compliance is 'at large': Re Taylor at 379; Byron at 270. (2) While there is no stay in place, the application for a stay of proceeding No. 4000/09 having been dismissed on 27 November 2009, it was dismissed on jurisdictional, rather than discretionary, grounds. Considerable weight should only be given to the absence of a stay of the underlying judgment ( Byron at 270G; Geard (in the passage quoted in Byron at 269G)), if the court that granted the judgment had jurisdiction and power to grant a stay. In circumstances such as the present, where the court that issued the judgment has determined that it has no jurisdiction to grant a stay, the absence of a stay should, in relation to the discretion under s 41(6A) , be viewed as carrying no weight, rather than 'considerable weight'. (3) Only a short amount of time is likely to be involved in any extension of time, as the proceeding in the District Court is of limited scope. (4) If Mrs Coshott succeeds in the District Court to any extent, she will be entitled to an order setting aside the Bankruptcy Notice: Halstead v Westpac Banking Corporation [1991] FCA 424 ; (1991) 31 FCR 337 at 355. (5) Reference was made to the merits of the appeal while acknowledging the reluctance of courts to enter upon that area, save in the particular circumstances referred to by Lehane J in Byron at [36] above. The thrust of the submission was that the appeal had merit because: (a) There was no basis for the costs assessor to proceed to determine an amount payable by Mrs Coshott but refuse to determine an amount payable by Mr Coshott; (b) the Legal Profession Act does not give a costs assessor any power to, in effect, alter the terms of an assessment that are referred to him or her; (c) the costs assessor acted ultra vires ; (d) the broad brush approach taken by the costs assessor to assessment was not permissible: Cassegrain v CRK Engineering [2008] NSWSC 457 including the passages extracted therein from Kennedy Miller Television Pty Ltd v Lancken (unreported, Supreme Court of New South Wales, August 1999, Sperling J); (e) inadequate reasons are an error of law: Cassegrain at [86]. (6) The Bankruptcy Notice was served after the District Court proceeding No. 2872/09 to appeal the Certificate of Determination had been commenced. Whilst Mr Barry was entitled to do this (there being no stay in place), it is relevant to the discretion that Mr Barry chose to issue his Bankruptcy Notice in circumstances where he knew that the Certificate of Determination, and hence the judgment, was under challenge. This is not a situation of the appeal being launched in response to a bankruptcy notice. Indeed, it is arguably the reverse.
Case: Kennedy Miller Television Pty Ltd v Lancken (unreported, Supreme Court of New South Wales, August 1999, Sperling J) 
Outcome: cited
for Mrs Coshott submitted that a further extension of time for compliance with the Bankruptcy Notice should be allowed in terms of the amended order sought in the amended application by reference to the following considerations: (1) The discretion to grant an extension of time for compliance is 'at large': Re Taylor at 379; Byron at 270. (2) While there is no stay in place, the application for a stay of proceeding No. 4000/09 having been dismissed on 27 November 2009, it was dismissed on jurisdictional, rather than discretionary, grounds. Considerable weight should only be given to the absence of a stay of the underlying judgment ( Byron at 270G; Geard (in the passage quoted in Byron at 269G)), if the court that granted the judgment had jurisdiction and power to grant a stay. In circumstances such as the present, where the court that issued the judgment has determined that it has no jurisdiction to grant a stay, the absence of a stay should, in relation to the discretion under s 41(6A) , be viewed as carrying no weight, rather than 'considerable weight'. (3) Only a short amount of time is likely to be involved in any extension of time, as the proceeding in the District Court is of limited scope. (4) If Mrs Coshott succeeds in the District Court to any extent, she will be entitled to an order setting aside the Bankruptcy Notice: Halstead v Westpac Banking Corporation [1991] FCA 424 ; (1991) 31 FCR 337 at 355. (5) Reference was made to the merits of the appeal while acknowledging the reluctance of courts to enter upon that area, save in the particular circumstances referred to by Lehane J in Byron at [36] above. The thrust of the submission was that the appeal had merit because: (a) There was no basis for the costs assessor to proceed to determine an amount payable by Mrs Coshott but refuse to determine an amount payable by Mr Coshott; (b) the Legal Profession Act does not give a costs assessor any power to, in effect, alter the terms of an assessment that are referred to him or her; (c) the costs assessor acted ultra vires ; (d) the broad brush approach taken by the costs assessor to assessment was not permissible: Cassegrain v CRK Engineering [2008] NSWSC 457 including the passages extracted therein from Kennedy Miller Television Pty Ltd v Lancken (unreported, Supreme Court of New South Wales, August 1999, Sperling J); (e) inadequate reasons are an error of law: Cassegrain at [86]. (6) The Bankruptcy Notice was served after the District Court proceeding No. 2872/09 to appeal the Certificate of Determination had been commenced. Whilst Mr Barry was entitled to do this (there being no stay in place), it is relevant to the discretion that Mr Barry chose to issue his Bankruptcy Notice in circumstances where he knew that the Certificate of Determination, and hence the judgment, was under challenge. This is not a situation of the appeal being launched in response to a bankruptcy notice. Indeed, it is arguably the reverse.
Case: Maher v Commonwealth Bank of Australia [2008] FMCA 1004 
Outcome: referred to
are, in my view, a number of problems with Mrs Coshott's application to set aside the Bankruptcy Notice, not the least of which are: (1) Her amended application of 29 October 2009 was not accompanied by an affidavit which complied with r 3.02(1) of the Federal Court (Bankruptcy) Rules 2006 in that the affidavit did not set out the grounds in support of the application to set aside. Arguably, Mrs Coshott's affidavit of 27 October 2009 filed in support of her amended application of 29 October 2009 set out the grounds upon which she sought an extension of time for compliance with the Bankruptcy Notice in compliance with r 3.03(1), but even that is not beyond argument. But even if she did, that would not satisfy the requirements of r 3.02(1) which requires the affidavit to set out the grounds in support of the application to set aside. As was noted in Maher v Commonwealth Bank of Australia [2008] FMCA 1004 , a failure to address the material requirements of r 3.02 (in that case it was r 3.02 of the Federal Magistrates Court (Bankruptcy) Rules, but they are in the same terms) will normally be fatal to an application to set aside a bankruptcy notice. (2) Second, counsel for Mrs Coshott did not articulate any grounds upon which the application to set aside the Bankruptcy Notice was founded. The best one can find is at para (70) of his written submissions where it is put: The application to set aside the Bankruptcy Notice is underlying [the] application to set aside the Certificate of Determination [of Costs] [in] the District Court ... With respect, that is not a proper ground in support of Mrs Coshott's application to set aside the Bankruptcy Notice. As was said by Emmett J in Forge at [27]: [T]he Act gives no general discretion to set aside bankruptcy notices that are valid in form and not an abuse of process. The Act permits the issue of a bankruptcy notice and, if the notice is valid, prescribes the consequences to the bankrupt of non-compliance. The grounds upon which a bankruptcy notice may be set aside must relate to the form or content of the notice, service of the notice or the existence of the debt upon which the judgment, and, in turn, the notice, is founded. Reference to the existence of a debt includes the existence of a counterclaim, set-off or cross demand equal to or exceeding the amount of the debt: Re Briggs; Ex parte Briggs v Deputy Commissioner of Taxation (WA) (1986) 12 FCR 310 ; Re Athans; Ex parte Athans (1991) 29 FCR 302. Since jurisdiction to set aside a defective bankruptcy notice is not a general discretionary jurisdiction, it differs from the jurisdiction to make a sequestration order under s 52(1), which is expressly discretionary.
Case: Re Baker; Ex parte Baker v Staples (unreported, Federal Court, Kiefel J, 4 September 1995)
Outcome: cited
Honour made the following observations: (1) It is not only on the hearing of a petition that the Court may 'go behind' the judgment giving rise to the judgment debt on which the petitioning creditor relies; the judgment debt can be impeached on a notice to set aside a bankruptcy notice (at 268D). (2) His Honour noted the different approaches of Kiefel J in Re Baker; Ex parte Baker v Staples (unreported, Federal Court, Kiefel J, 4 September 1995) and Sheppard J in Re Geard; Ex parte Reid (unreported, Federal Court, Sheppard J, 11 February 1994) and to later decisions in which Geard was followed. (3) In the course of his judgment in Geard , Sheppard J had taken on board the following considerations: (a) The debtor had not made any application for a stay of proceedings pending the outcome of the appeal; (b) an application to extend time for compliance with the bankruptcy notice is not the hearing of a bankruptcy petition. The refusal of the application will not affect the status of the debtor but it will mean that he, in all probability, will commit an act of bankruptcy; (c) if the appeal is ultimately dismissed and the judgment stands with the consequence that the bankruptcy proceedings go on, it may be quite important to the petitioning creditor, whoever he or she may be, to the general body of creditors and to the trustee in bankruptcy, that there be, for the purposes of the administration of the bankrupt estate, an act of bankruptcy committed at an earlier time than would be the case if the application were acceded to. (4) The approach adopted by Sheppard J was followed by Whitlam J in Re Smith (unreported, Federal Court, 4 May 1994) and by Sackville J in Agrillo v Codisposto (unreported, Federal Court, Sackville J, 16 December 1994).
Case: Re Bowen; Ex parte The Australian Workers Union &amp; Ors (1945) 13 ABC 275
Outcome: cited
for Mr Barry submitted that no further extension of time for compliance with the Bankruptcy Notice should be allowed by reference to the following considerations: (1) There was no stay of the judgment upon which the Bankruptcy Notice is based and no suspension of the cost assessor's determination or decision: see s 386 of the Legal Profession Act . (2) There were a number of difficulties with the issues which Mrs Coshott identified as being raised by her appeal in proceeding No. 2872/09 which cast serious doubt on the likelihood of its success, if not its bona fides , not the least of which was that the orders made by James J of the Supreme Court of New South Wales on 20 February 2008 that Mr and Mrs Coshott pay the costs of Mr Barry in proceeding No. 20114/04 gave rise to a joint and several liability: Re Bowen; Ex parte The Australian Workers Union &amp; Ors (1945) 13 ABC 275 at 278 279. (3) The consideration in (2) aside, it is inappropriate for me to embark on a course of determining what is or is not going to happen with the appeal.
Case: Re Smith (unreported, Federal Court, 4 May 1994)
Outcome: cited
Honour made the following observations: (1) It is not only on the hearing of a petition that the Court may 'go behind' the judgment giving rise to the judgment debt on which the petitioning creditor relies; the judgment debt can be impeached on a notice to set aside a bankruptcy notice (at 268D). (2) His Honour noted the different approaches of Kiefel J in Re Baker; Ex parte Baker v Staples (unreported, Federal Court, Kiefel J, 4 September 1995) and Sheppard J in Re Geard; Ex parte Reid (unreported, Federal Court, Sheppard J, 11 February 1994) and to later decisions in which Geard was followed. (3) In the course of his judgment in Geard , Sheppard J had taken on board the following considerations: (a) The debtor had not made any application for a stay of proceedings pending the outcome of the appeal; (b) an application to extend time for compliance with the bankruptcy notice is not the hearing of a bankruptcy petition. The refusal of the application will not affect the status of the debtor but it will mean that he, in all probability, will commit an act of bankruptcy; (c) if the appeal is ultimately dismissed and the judgment stands with the consequence that the bankruptcy proceedings go on, it may be quite important to the petitioning creditor, whoever he or she may be, to the general body of creditors and to the trustee in bankruptcy, that there be, for the purposes of the administration of the bankrupt estate, an act of bankruptcy committed at an earlier time than would be the case if the application were acceded to. (4) The approach adopted by Sheppard J was followed by Whitlam J in Re Smith (unreported, Federal Court, 4 May 1994) and by Sackville J in Agrillo v Codisposto (unreported, Federal Court, Sackville J, 16 December 1994).
Case: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125
Outcome: cited
second application sought an extension of time for compliance with the Bankruptcy Notice in reliance on s 41(6A) of the Act pending the outcome of Mrs Coshott's notice of motion filed on 23 October 2009 in proceeding No. 4000/09. As Hill and Marshall JJ observed in Shepherd v Chiquita Brands South Pacific Pty Ltd [2004] FCAFC 76 at [40] : Clearly s 41(6A) was intended to be in aid of the application to set aside ... the bankruptcy notice ... See too Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125 at 130.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: referred to
In view of this, and mindful of the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1986] HCA 40 ; (1986) 162 CLR 24, I do not consider that the words ' no prospect ' in the reasons given by the Tribunal indicate that the Tribunal did not take into account his reservist status in making this finding. The finding that there was no real chance of future persecution was open on the evidence. I can see no jurisdictional error in the finding. Accordingly, the appeal should be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 22 August 2006 Counsel for the Appellant: The appellant appeared in person, with the assistance of his friend Mr Sarkis. Counsel for the Respondent: Ms S McNaughton Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 7 August 2006 Date of Judgment: 22 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1110.html
Case: SZECD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 31 ; (2006) 150 FCR 53
Outcome: applied
The question, therefore, is whether, as Smith FM suggests, the decision of the Tribunal can be sustained because there is a separate and independent line of reasoning which is not affected by the breach of s 424A(1): see SZECD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 31 ; (2006) 150 FCR 53. 32 The finding of the Tribunal relied upon by Smith FM states as follows: 'In any event, even if I am wrong in relation to these findings, I am satisfied that given that the applicant has now been discharged from the LAF, there is no prospect that this mistreatment would continue if he were to return to Lebanon. I do not accept the applicant's evidence that his relative the colonel advised him to leave Lebanon once he was demobilised. There is no sensible reason arising from the evidence before me to suggest that the applicant would be at risk of any continuing harm or human rights violations arising from his military service once that service had ended. Whatever ill treatment he may have encountered during that period, I am satisfied that there is no real chance that it would continue in the future.' 33 I accept that this is a separate and independent line of reasoning as discussed in SZECD and that, if this finding is unaffected by jurisdictional error, the decision of the Tribunal can be sustained. Accordingly, the question is whether this finding is free from jurisdictional error. 34 I consider that it was open to the Tribunal to find that there was no real chance that the appellant would be subject to mistreatment if he were to return to Lebanon because he had been discharged from the military, even given the possibility that the appellant might be called up for reservist duty. The Tribunal was clearly aware of this possibility. It recorded in its reasons the fact that the appellant is a reservist, noting: 'The applicant submitted copies and translations of his military service exemption card, issued in January 2003, stating that the applicant had completed more than two years service in the armed forces and was free to travel overseas, among other things; his army reservist card, indicating that he is eligible for reservist duty at first level until 2007, and at second level until 2017 ...' 35 The Tribunal's reasons also record that the appellant specifically raised the matter of his reservist status, noting that the appellant claimed: 'Also, because he is a reservist, if a war breaks out he will have to fight; he does not want to fight because he does not want to hurt anyone, and they will put Christians in the front line.'
Case: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Outcome: cited
Some latitude needs to be allowed for the changing of a party's case as investigations reveal possible new arguments. But a line has to be drawn somewhere. Otherwise cases would never get to trial. When, as often happens today, and did so in the present case, there is no interlocutory injunction in place, an ultimately successful patentee may suffer loss which is difficult or impossible to quantify. In the present case B &amp; D claims that costs wasted or duplicated by reason of GMCA's fourth (19 December 2006) and fifth (18 April 2007) particulars of invalidity should be ordered on an indemnity basis. I agree. One of the established categories for which indemnity costs may be ordered is where a party has conducted its case so as to grossly prolong the litigation, thereby causing (the other party) to incur costs far beyond what they could reasonably have expected to incur in litigation of the genuine issues. Ragata Develpopments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court of Australia, Davies J, 5 March 1993) at 5, cited with approval in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233.