Catalano v Managing Australian Destinations Pty Limited (No 2) [2014] FCA 597

Catalano v Managing Australian Destinations Pty Limited (No 2) [2014] FCA 597

The application for a stay was refused because the Kurth-Hepner camp did not identify any arguable House v The King error in the Full Court's discretionary decision under s 233(1)(a) to wind up Fine Food Solutionz; its arguments mainly challenged the weight given to factors. Despite serious potential consequences for employees, contracts and Barramundi Gardens, there was very little real prospect that special leave would be granted and this was not a rare case where other factors justified a stay. The recusal application was also rejected because a fair-minded lay observer would not reasonably apprehend bias merely because a member of the Full Court heard the stay application.

Jurisdiction
Australia
Judgment Date
15 May 2014
Procedural Posture
Appeal; Interlocutory Application for Stay / Application by the Kurth Hepner Camp for a Stay of Full Court Orders Pending a Proposed Application for Special Leave to Appeal to the High Court; Recusal Objection Also Raised
Outcome
Interlocutory application for stay dismissed; recusal application rejected; existing stay discharged.
Legal Topics
['stay Pending Special Leave Application' 'winding Up for Oppression' 'recusal and Apprehended Bias' 'discretionary Appellate Orders' 'costs on Indemnity Basis']
['corporations Law' 'civil Procedure' 'appellate Procedure'] ['stay Pending Special Leave Application' 'winding Up for Oppression' 'recusal and Apprehended Bias' 'discretionary Appellate Orders' 'costs on Indemnity Basis']

Case Brief

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Procedural Posture

Appeal; Interlocutory Application for Stay / Application by the Kurth Hepner Camp for a Stay of Full Court Orders Pending a Proposed Application for Special Leave to Appeal to the High Court; Recusal Objection Also Raised

Legal Issues

  1. 1 ['Whether Rares J should recuse himself from hearing the stay application for apprehended bias.' "Whether the Full Court's winding up order should be stayed pending a proposed application for special leave to appeal to the High Court." 'Whether there was a substantial prospect that special leave to appeal would be granted.' 'Where the balance of convenience lay given the potential consequences of winding up Fine Food Solutionz Pty Limited.']

Ratio Decidendi

The application for a stay was refused because the Kurth-Hepner camp did not identify any arguable House v The King error in the Full Court's discretionary decision under s 233(1)(a) to wind up Fine Food Solutionz; its arguments mainly challenged the weight given to factors. Despite serious potential consequences for employees, contracts and Barramundi Gardens, there was very little real prospect that special leave would be granted and this was not a rare case where other factors justified a stay. The recusal application was also rejected because a fair-minded lay observer would not reasonably apprehend bias merely because a member of the Full Court heard the stay application.

Court Disposition

Interlocutory application for stay dismissed; recusal application rejected; existing stay discharged.

Orders

  • ['The interlocutory application filed on 14 May 2014 be dismissed.' 'The third and fourth respondents pay the costs of that interlocutory application and, so far as the costs of 15 May 2014 are concerned, those costs be taxed on an indemnity basis.' 'The order for stay made by Bennett J on 14 May 2014 and extended...