Garrett v Macks (No 2) [2008] FCA 1420

Garrett v Macks (No 2) [2008] FCA 1420

Leave to appeal was refused because the order refusing costs was not shown to be subject to sufficient doubt to warrant reconsideration by the Full Court, the costs order sought assumed the applicant's entitlement to funds that were the subject of the proceeding and could not be determined before trial, the applicant had not persuaded the Court that the trust of which he claimed to be trustee ever existed, and the application for leave to appeal had itself been dismissed.

Jurisdiction
Australia
Judgment Date
08 September 2008
Procedural Posture
Application for Leave to Appeal / Application for Leave to Appeal From an Order Refusing the Applicant's Application for Costs Dismissed
Outcome
Application for leave to appeal dismissed.
Legal Topics
['leave to Appeal' 'costs in Advance' 'federal Court Litigants Fund' 'trust Funds']
['civil Procedure' 'costs' 'appeals' 'trusts'] ['leave to Appeal' 'costs in Advance' 'federal Court Litigants Fund' 'trust Funds']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Application for Leave to Appeal From an Order Refusing the Applicant's Application for Costs Dismissed

Legal Issues

  1. 1 ['Whether the applicant should be granted leave to appeal from the order made on 26 August 2008 refusing his application for costs.' 'Whether moneys held in the Federal Court Litigants Fund should be paid to the applicant in advance to prosecute an application for extension of time, an application for leave to appeal, an appeal, or the hearing.']

Ratio Decidendi

Leave to appeal was refused because the order refusing costs was not shown to be subject to sufficient doubt to warrant reconsideration by the Full Court, the costs order sought assumed the applicant's entitlement to funds that were the subject of the proceeding and could not be determined before trial, the applicant had not persuaded the Court that the trust of which he claimed to be trustee ever existed, and the application for leave to appeal had itself been dismissed.

Court Disposition

Application for leave to appeal dismissed.

Orders

  • ['Paragraph 6 of the amended notice of motion dated 1 September 2008 be dismissed.' "The applications for leave to appeal in paragraphs 7 and 8 of the amended notice of motion dated 1 September 2008 against paragraph 2 of Justice Lander's orders of 26 August 2008 refusing the applicant's application for costs in...