Smith v Bone, in the matter of ACN 002 864 002 Pty Ltd (in liq) (No 3) [2016] FCA 1350

Smith v Bone, in the matter of ACN 002 864 002 Pty Ltd (in liq) (No 3) [2016] FCA 1350

Applying Leaver, the Court exercised its discretion to set aside the 24 April 2015 judgment because the orders were sought with the consent of Mr Smith, would achieve finality in the litigation, the defendants had discontinued their appeal on the basis that they would seek to have the judgment set aside after paying the settlement sum, the defendants had performed the agreement, and the settlement agreement had been approved by the Court.

Jurisdiction
Australia
Judgment Date
18 November 2016
Procedural Posture
Application to Set Aside Judgment Under R 39.05(f) of the Federal Court Rules 2011 / Heard on the Papers; Defendants Sought Consent Orders Setting Aside the Judgment Made on 24 April 2015
Outcome
Judgment given on 24 April 2015 set aside and proceeding dismissed with no order as to costs.
Legal Topics
['setting Aside Judgment' 'consent Orders' 'settlement Agreement' 'finality of Litigation' 'liquidator Compromise']
['practice and Procedure' 'corporations and Corporate Insolvency'] ['setting Aside Judgment' 'consent Orders' 'settlement Agreement' 'finality of Litigation' 'liquidator Compromise']

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Procedural Posture

Application to Set Aside Judgment Under R 39.05(f) of the Federal Court Rules 2011 / Heard on the Papers; Defendants Sought Consent Orders Setting Aside the Judgment Made on 24 April 2015

Legal Issues

  1. 1 ['Whether the Court should exercise its discretion under r 39.05(f) of the Federal Court Rules 2011 to set aside the judgment given on 24 April 2015 where the party in whose favour it was made consented.' 'Whether the settlement agreement, payment of the agreed sum, discontinuance of related applications and appeal, and Court approval of the compromise warranted setting aside the judgment and dismissing the proceeding.']

Ratio Decidendi

Applying Leaver, the Court exercised its discretion to set aside the 24 April 2015 judgment because the orders were sought with the consent of Mr Smith, would achieve finality in the litigation, the defendants had discontinued their appeal on the basis that they would seek to have the judgment set aside after paying the settlement sum, the defendants had performed the agreement, and the settlement agreement had been approved by the Court.

Court Disposition

Judgment given on 24 April 2015 set aside and proceeding dismissed with no order as to costs.

Orders

  • ['Leave be granted to the defendants to file amended interlocutory application dated 19 October 2016.' 'Pursuant to r 39.05(f) of the Federal Court Rules 2011, the judgment given on 24 April 2015 be set aside.' 'The proceeding be dismissed with no order as to costs.']