Forest Marsh Pty Ltd v Pleash (No 2) [2011] FCA 570

Forest Marsh Pty Ltd v Pleash (No 2) [2011] FCA 570

The interlocutory injunction was refused because none of the grounds of appeal had any reasonable prospect of success and the balance of convenience did not favour restraint: the charge and appointment of the receiver were not challenged, the payment of $309,423.26 was insufficient to discharge Forest Marsh's obligations to Bibby, the continuation of the receivership after 10 October 2008 was not seriously arguable as wrongful, and there was no evidence that the receiver's fees and expenses were unreasonable or excessive. The appeal was not dismissed as incompetent, but the appellants were required to file an amended notice of appeal because the existing grounds did not identify alleged...

Jurisdiction
Australia
Judgment Date
31 May 2011
Procedural Posture
Appeal From the Federal Court of Australia; Notices of Motion / Interlocutory Application Pending Determination of Appeal
Outcome
The appellants' notice of motion for an interlocutory injunction was dismissed; the respondents' notice of motion was otherwise dismissed, but the appellants were ordered to file an amended notice of appeal and draft appeal book indexes and to pay the respondents' costs of both notices of motion.
Legal Topics
['interlocutory Injunction Pending Appeal' 'stay Pending Appeal' 'notice of Appeal' 'receivership' 'security Interests']
['practice and Procedure'] ['interlocutory Injunction Pending Appeal' 'stay Pending Appeal' 'notice of Appeal' 'receivership' 'security Interests']

Case Brief

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Procedural Posture

Appeal From the Federal Court of Australia; Notices of Motion / Interlocutory Application Pending Determination of Appeal

Legal Issues

  1. 1 ['Whether the appellants should be granted an interlocutory injunction preventing the respondents from selling the property known as "Forest Marsh" pending determination of the appeal.' 'Whether the appeal should be dismissed as incompetent or expedited.' "Whether the appellants should be ordered to file an amended notice of appeal because the grounds failed to identify error in the trial judge's reasons."]

Ratio Decidendi

The interlocutory injunction was refused because none of the grounds of appeal had any reasonable prospect of success and the balance of convenience did not favour restraint: the charge and appointment of the receiver were not challenged, the payment of $309,423.26 was insufficient to discharge Forest Marsh's obligations to Bibby, the continuation of the receivership after 10 October 2008 was not seriously arguable as wrongful, and there was no evidence that the receiver's fees and expenses were unreasonable or excessive. The appeal was not dismissed as incompetent, but the appellants were required to file an amended notice of appeal because the existing grounds did not identify alleged...

Court Disposition

The appellants' notice of motion for an interlocutory injunction was dismissed; the respondents' notice of motion was otherwise dismissed, but the appellants were ordered to file an amended notice of appeal and draft appeal book indexes and to pay the respondents' costs of both notices of motion.

Orders

  • ["The appellants' notice of motion be dismissed." 'The appellants file and serve an amended notice of appeal within 7 days of today.' 'The appellants file and serve a draft index to Part A and Part B of the appeal books within 14 days of today.' "The respondents' notice of motion be otherwise dismissed." "The...