Ghosh v Newton (No 8) [2024] NSWSC 281

Ghosh v Newton (No 8) [2024] NSWSC 281

The application was dismissed because it sought to interfere with a possession order of the Federal Circuit and Family Court of Australia, which this Court should not do and may lack power to do, and because the substance of the application had already been refused by Kunc J and then renewed before Lindsay J, so the Court was functus officio. Even if power existed, the Court would decline to exercise it because Dr Ghosh had ample opportunity to pursue a direct challenge.

Jurisdiction
Australia
Judgment Date
14 March 2024
Procedural Posture
Application for Injunction or Stay Restraining Enforcement of Eviction Under a Possession Order of the Federal Circuit and Family Court of Australia / Urgent Oral Application in the Equity Duty List
Outcome
Application dismissed; costs ordered against the plaintiff as applicant.
Legal Topics
['injunction' 'stay of Possession Order' 'comity Between Courts' 'functus Officio' 'costs']
['equity' 'civil Procedure' 'bankruptcy'] ['injunction' 'stay of Possession Order' 'comity Between Courts' 'functus Officio' 'costs']

Case Brief

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Procedural Posture

Application for Injunction or Stay Restraining Enforcement of Eviction Under a Possession Order of the Federal Circuit and Family Court of Australia / Urgent Oral Application in the Equity Duty List

Legal Issues

  1. 1 ["Whether the Supreme Court should restrain Mr Newton from enforcing Dr Ghosh's eviction from the Charlestown property under the Federal Circuit and Family Court of Australia possession order." 'Whether this Court could or should interfere with the process of the Federal Circuit and Family Court of Australia.' 'Whether the application was barred or foreclosed because the same relief had already been refused by Kunc J and Lindsay J.' 'Whether costs should follow the event.']

Ratio Decidendi

The application was dismissed because it sought to interfere with a possession order of the Federal Circuit and Family Court of Australia, which this Court should not do and may lack power to do, and because the substance of the application had already been refused by Kunc J and then renewed before Lindsay J, so the Court was functus officio. Even if power existed, the Court would decline to exercise it because Dr Ghosh had ample opportunity to pursue a direct challenge.

Court Disposition

Application dismissed; costs ordered against the plaintiff as applicant.

Orders

  • ['The oral application for an order staying the order for possession made by the Federal Circuit and Family Court of Australia, Division 1 on 22 November 2023 is dismissed.' 'The plaintiff as applicant pay the costs of the first defendant, as respondent, of the oral application.']