Ambrose (Trustee) in the matter of Poumako (Bankrupt) v Poumako (No 6) [2018] FCA 577

Ambrose (Trustee) in the matter of Poumako (Bankrupt) v Poumako (No 6) [2018] FCA 577

The interlocutory application was dismissed because the use of the settlement deed, obtained under threat of pre-action discovery proceedings in another jurisdiction, justified refusing equitable relief; in any event, the deed did not compromise the 3 April 2012 costs order and therefore its non-disclosure was immaterial to the 29 November 2013 orders. Legalese also failed to show that setting aside or varying the 29 November 2013 orders was necessary or appropriate, given that the earlier quantum application concerned only an unmeritorious challenge to the assessed amount of costs.

Jurisdiction
Australia
Judgment Date
30 April 2018
Procedural Posture
Interlocutory Application in Federal Court Proceedings Concerning Costs Orders in a Bankruptcy Related Matter / Application to Set Aside Orders Made on 29 November 2013 After Finalisation and Entry of Orders
Outcome
Interlocutory application dismissed with costs.
Legal Topics
['revocation or Variation of Entered Orders' 'alleged Non Disclosure of Material Facts' 'solicitor Liability for Costs Thrown Away' 'construction of Settlement Deed' 'implied Undertaking as to Use of Documents' 'discretionary Refusal of Relief']
['practice and Procedure' 'bankruptcy and Insolvency' 'costs' 'evidence'] ['revocation or Variation of Entered Orders' 'alleged Non Disclosure of Material Facts' 'solicitor Liability for Costs Thrown Away' 'construction of Settlement Deed' 'implied Undertaking as to Use of Documents' 'discretionary Refusal of Relief']

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Procedural Posture

Interlocutory Application in Federal Court Proceedings Concerning Costs Orders in a Bankruptcy Related Matter / Application to Set Aside Orders Made on 29 November 2013 After Finalisation and Entry of Orders

Legal Issues

  1. 1 ['Whether the settlement deed should be admitted in evidence or relief refused because of the circumstances in which it was obtained' 'Whether the 10 May 2013 orders created a direct liability by Legalese to pay Mr Ambrose $6,000 that could not be affected by the settlement deed' 'Whether the settlement deed released Mr Poumako from his primary obligation under the 3 April 2012 orders to pay Mr Ambrose $6,000' 'Whether the existence and performance of the settlement deed were material facts whose non-disclosure warranted setting aside the 29 November 2013 orders']

Ratio Decidendi

The interlocutory application was dismissed because the use of the settlement deed, obtained under threat of pre-action discovery proceedings in another jurisdiction, justified refusing equitable relief; in any event, the deed did not compromise the 3 April 2012 costs order and therefore its non-disclosure was immaterial to the 29 November 2013 orders. Legalese also failed to show that setting aside or varying the 29 November 2013 orders was necessary or appropriate, given that the earlier quantum application concerned only an unmeritorious challenge to the assessed amount of costs.

Court Disposition

Interlocutory application dismissed with costs.

Orders

  • ['The application is dismissed.']