Coshott v Burke [2017] FCAFC 230

Coshott v Burke [2017] FCAFC 230

Leave to raise the identified grounds and leave to amend the notice of appeal were refused because the relevant points were not raised below, many involved mixed questions of fact and law, and allowing them to be advanced on appeal would be procedurally unfair or prejudicial to the respondents, particularly where the appellants were represented below and had an opportunity to raise the contentions before the primary judge.

Jurisdiction
Australia
Judgment Date
22 November 2017
Procedural Posture
Appeal From Fewin Pty Ltd V Burke (no 3) [2017] FCA 693 Concerning Lump Sum Costs Orders / Application for Leave to Advance Appeal Grounds Not Raised Before the Primary Judge and for Leave to Amend the Notice of Appeal
Outcome
Leave to advance the identified grounds of appeal and leave to amend the notice of appeal were refused.
Legal Topics
['lump Sum Costs Orders' 'leave to Raise New Points on Appeal' 'leave to Amend Notice of Appeal' 'procedural Fairness' 'indemnity Principle' 'federal Court Costs Discretion']
['costs' 'appellate Procedure' 'bankruptcy and Insolvency'] ['lump Sum Costs Orders' 'leave to Raise New Points on Appeal' 'leave to Amend Notice of Appeal' 'procedural Fairness' 'indemnity Principle' 'federal Court Costs Discretion']

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Procedural Posture

Appeal From Fewin Pty Ltd V Burke (no 3) [2017] FCA 693 Concerning Lump Sum Costs Orders / Application for Leave to Advance Appeal Grounds Not Raised Before the Primary Judge and for Leave to Amend the Notice of Appeal

Legal Issues

  1. 1 ['Whether the appellants should be granted leave to raise grounds of appeal that were not taken before the primary judge.' "Whether the appellants should be granted leave to amend the notice of appeal to raise a further issue concerning counsels' fees identified in their written submissions." 'Whether permitting the new grounds or issue would cause procedural unfairness or prejudice to the respondents, including evidentiary unfairness.']

Ratio Decidendi

Leave to raise the identified grounds and leave to amend the notice of appeal were refused because the relevant points were not raised below, many involved mixed questions of fact and law, and allowing them to be advanced on appeal would be procedurally unfair or prejudicial to the respondents, particularly where the appellants were represented below and had an opportunity to raise the contentions before the primary judge.

Court Disposition

Leave to advance the identified grounds of appeal and leave to amend the notice of appeal were refused.

Orders

  • ['Leave, in respect to the grounds identified as the grounds in the notice of appeal, be refused.' "Leave to amend the notice of appeal, so as to raise the issue identified in paragraphs 16 to 25 of the appellant's outline of submissions, be refused."]