Sherry, John Lawrence & Anor v Jefferson, Philip Gregory & Ors [1998] FCA 1719

Sherry, John Lawrence & Anor v Jefferson, Philip Gregory & Ors [1998] FCA 1719

The applicants should pay the first respondents' costs because, as between the applicants and the trustees, the applicants' attempt to take over proceedings was premature and the application was not to proceed. However, costs as between the applicants and Mr Dunwoody and Chelmscliff, including the applicants' liability for the trustees' costs as between those parties, should be reserved because the circumstances of the transfer to Chelmscliff would be investigated in the trustees' separate proceedings and deferral would better serve the interests of justice.

Jurisdiction
Australia
Judgment Date
18 December 1998
Procedural Posture
Application to Annul a Bankruptcy and Restrain Registration of a Transfer of Real Property / Costs Determination After the Applicants No Longer Proposed to Continue; Application Otherwise Dismissed
Outcome
Application otherwise dismissed; costs reserved in part.
Legal Topics
['annulment of Bankruptcy' 'trustee in Bankruptcy' 'transfer of Real Property' 'torrens Title Registration' 'interlocutory Relief' 'reserved Costs']
['bankruptcy' 'civil Procedure' 'costs' 'property'] ['annulment of Bankruptcy' 'trustee in Bankruptcy' 'transfer of Real Property' 'torrens Title Registration' 'interlocutory Relief' 'reserved Costs']

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Procedural Posture

Application to Annul a Bankruptcy and Restrain Registration of a Transfer of Real Property / Costs Determination After the Applicants No Longer Proposed to Continue; Application Otherwise Dismissed

Legal Issues

  1. 1 ["Whether the applicants should pay the trustees in bankruptcy's costs when the application was not to proceed." 'Whether costs as between the applicants and Mr Dunwoody and Chelmscliff should be determined immediately or reserved pending related trustee proceedings.' 'Whether the applicants were premature in seeking an order allowing them to prosecute proceedings against Chelmscliff in the name of the trustees.']

Ratio Decidendi

The applicants should pay the first respondents' costs because, as between the applicants and the trustees, the applicants' attempt to take over proceedings was premature and the application was not to proceed. However, costs as between the applicants and Mr Dunwoody and Chelmscliff, including the applicants' liability for the trustees' costs as between those parties, should be reserved because the circumstances of the transfer to Chelmscliff would be investigated in the trustees' separate proceedings and deferral would better serve the interests of justice.

Court Disposition

Application otherwise dismissed; costs reserved in part.

Orders

  • ["The applicants are to pay the first respondents' costs of the proceedings, including reserved costs." "As between the applicants and the second and third respondents, the first respondents' said costs are reserved." 'The costs of proceedings as between the applicants and the second and third respondents are...