Abram, Joseph & Anor v Bank of New Zealand Ltd & Anor [1996] FCA 597

Abram, Joseph & Anor v Bank of New Zealand Ltd & Anor [1996] FCA 597

Although the appellants sought an indulgence and did not obtain a stay, the notice to vacate contained a serious error by naming Mr Fitzpatrick as entitled to possession when only the Bank of New Zealand was entitled under Moore J's order. The issue was appropriately raised, was not determined because further time to vacate made the notice superfluous, and may have affected enforcement of possession; therefore the appropriate costs order was no order as to costs.

Jurisdiction
Australia
Judgment Date
26 April 1996
Procedural Posture
Notice of Motion in Federal Court Proceedings / Decision on Costs of Notice of Motion Dated 27 October 1995
Outcome
No order as to costs of the notice of motion dated 27 October 1995.
Legal Topics
['stay of Orders' 'writ of Possession' 'notice to Vacate' 'extension of Time to Vacate' 'no Order as to Costs']
['civil Procedure' 'costs' 'enforcement of Judgments' 'possession of Land'] ['stay of Orders' 'writ of Possession' 'notice to Vacate' 'extension of Time to Vacate' 'no Order as to Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion in Federal Court Proceedings / Decision on Costs of Notice of Motion Dated 27 October 1995

Legal Issues

  1. 1 ["Whether costs should be ordered on the appellants' notice of motion dated 27 October 1995." 'Whether the error in the notice to vacate naming Michael J Fitzpatrick as a claimant entitled to possession raised a serious issue affecting enforcement of possession.' 'Whether the appellants should receive further time to vacate the premises.']

Ratio Decidendi

Although the appellants sought an indulgence and did not obtain a stay, the notice to vacate contained a serious error by naming Mr Fitzpatrick as entitled to possession when only the Bank of New Zealand was entitled under Moore J's order. The issue was appropriately raised, was not determined because further time to vacate made the notice superfluous, and may have affected enforcement of possession; therefore the appropriate costs order was no order as to costs.

Court Disposition

No order as to costs of the notice of motion dated 27 October 1995.

Orders

  • ['There be no order as to the costs of the notice of motion dated 27 October 1995.']