Garrett v Macks [2008] FCA 1419

Garrett v Macks [2008] FCA 1419

Although time was extended to 18 July 2008, leave to appeal was refused because the challenged decision turned on a straightforward factual question, the applicant had not identified any arguable error or satisfied the Decor test, and the further evidence and discovery he proposed were largely irrelevant, insufficiently identified, available earlier without explanation for non-production, or unlikely to be received by the Full Court.

Jurisdiction
Australia
Judgment Date
08 September 2008
Procedural Posture
Application for Extension of Time and Leave to Appeal / Single Judge Determination of Applications for Extension of Time and Leave to Appeal From Orders Made on 3 July 2008
Outcome
Time to apply for leave to appeal extended; application for leave to appeal dismissed with costs.
Legal Topics
['extension of Time to Apply for Leave to Appeal' 'leave to Appeal' 'joinder' 'further Evidence on Appeal' 'existence of a Trust' 'trustees in Bankruptcy']
['civil Procedure' 'trusts' 'bankruptcy'] ['extension of Time to Apply for Leave to Appeal' 'leave to Appeal' 'joinder' 'further Evidence on Appeal' 'existence of a Trust' 'trustees in Bankruptcy']

Case Brief

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Procedural Posture

Application for Extension of Time and Leave to Appeal / Single Judge Determination of Applications for Extension of Time and Leave to Appeal From Orders Made on 3 July 2008

Legal Issues

  1. 1 ['Whether time should be extended for the applicant to apply for leave to appeal from the orders made on 3 July 2008.' "Whether leave to appeal should be granted from the dismissal of the applicant's application to be joined as a party in SAD5 of 2006 as sole trustee of the Garrett Family Trust." 'Whether the applicant showed any arguable error in the factual finding that the Garrett Family Trust did not exist as a separate entity from the Andrew Garrett Family Trust.' 'Whether further evidence identified by the applicant was likely to be received by the Full Court under s 27 of the Federal Court Act 1976 (Cth).']

Ratio Decidendi

Although time was extended to 18 July 2008, leave to appeal was refused because the challenged decision turned on a straightforward factual question, the applicant had not identified any arguable error or satisfied the Decor test, and the further evidence and discovery he proposed were largely irrelevant, insufficiently identified, available earlier without explanation for non-production, or unlikely to be received by the Full Court.

Court Disposition

Time to apply for leave to appeal extended; application for leave to appeal dismissed with costs.

Orders

  • ['The time within which the application for leave to appeal against the orders made by Justice Lander on 3 July 2008 be extended to 18 July 2008.' 'The application for leave to appeal against the orders made by Justice Lander on 3 July 2008 be dismissed.' 'The applicant pay the costs of the respondents (Peter Macks...