Fexuto Pty Limited v Bosnjak Holdings Pty Limited & Ors (No 2) [2001] NSWCA 115

Fexuto Pty Limited v Bosnjak Holdings Pty Limited & Ors (No 2) [2001] NSWCA 115

The Notice of Motion was dismissed because the due diligence issue was a new matter that could have been raised by notice of appeal or in argument before the Court, was not raised during the hearing, and therefore should not be introduced for the first time through a Pt40 r9 application to vary judgment after orders had been made.

Jurisdiction
Australia
Judgment Date
20 April 2001
Procedural Posture
Notice of Motion to Vary Orders in an Appeal / Court of Appeal After Judgment Was Handed Down and Before Entry of Judgment
Outcome
The Notice of Motion is dismissed. The Claimant should pay the Opponent's costs of the Notice of Motion.
Legal Topics
['variation of Orders Before Entry of Judgment' 'supreme Court Rules, Part 40, Rule 9' 'new Issues Raised After Hearing' 'oppression Suit' 'costs']
['civil Procedure' 'corporations'] ['variation of Orders Before Entry of Judgment' 'supreme Court Rules, Part 40, Rule 9' 'new Issues Raised After Hearing' 'oppression Suit' 'costs']

Case Brief

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Procedural Posture

Notice of Motion to Vary Orders in an Appeal / Court of Appeal After Judgment Was Handed Down and Before Entry of Judgment

Legal Issues

  1. 1 ['Whether the Court should vary orders made when judgment was handed down on 12 April 2001 under Pt40 r9.' 'Whether the Court should grant leave or refer to a full bench an issue raised for the first time by Order 1 of the Notice of Motion.' 'Whether the claimant could obtain a due diligence order in relation to valuing shares where that issue had not been raised at first instance or on appeal.']

Ratio Decidendi

The Notice of Motion was dismissed because the due diligence issue was a new matter that could have been raised by notice of appeal or in argument before the Court, was not raised during the hearing, and therefore should not be introduced for the first time through a Pt40 r9 application to vary judgment after orders had been made.

Court Disposition

The Notice of Motion is dismissed. The Claimant should pay the Opponent's costs of the Notice of Motion.

Orders

  • ['The Notice of Motion is dismissed.' "The Claimant should pay the Opponent's costs of the Notice of Motion."]