BDT Holdings Pty Ltd v Piscopo (No 3) [2010] FCA 1480

BDT Holdings Pty Ltd v Piscopo (No 3) [2010] FCA 1480

Because Mr Piscopo no longer wished to pursue the cross-claim, leave to discontinue should be granted, but it would be inappropriate to determine the validity of the abandoned claims or to require Mr Hill to answer them merely for a costs determination. Mr Piscopo had not proved service on Ms Walker and had filed no...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
17 December 2010
Procedural Posture
Application by Respondent/cross Claimant for Leave to Discontinue Cross Claim and for Costs / Judgment on Motion Dated 3 December 2010
Outcome
Leave granted to file a notice of discontinuance against the fourth, fifth and tenth cross-respondents; no order as to costs in those proceedings; motion dated 3 December 2010 dismissed with costs; proceedings otherwise dismissed.
Legal Topics
['discontinuance of Proceedings' 'costs on Discontinuance' 'cross Claim' 'trustee in Bankruptcy' 'indemnity From Bankrupt Estate']
['civil Procedure' 'costs' 'bankruptcy'] ['discontinuance of Proceedings' 'costs on Discontinuance' 'cross Claim' 'trustee in Bankruptcy' 'indemnity From Bankrupt Estate']

Source-derived case record

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Procedural Posture

Application by Respondent/cross Claimant for Leave to Discontinue Cross Claim and for Costs / Judgment on Motion Dated 3 December 2010

Legal Issues

  1. 1 ['Whether the respondent/cross-claimant should be granted leave to discontinue his cross-claim against the fourth, fifth and tenth cross-respondents.' 'Whether the fifth and tenth cross-respondents should be ordered to pay the costs of the cross-claim.' 'Whether the respondent/cross-claimant should be entitled to claim an indemnity out of the bankrupt estate of the tenth cross-respondent in respect of the motion seeking leave to discontinue.']

Ratio Decidendi

Because Mr Piscopo no longer wished to pursue the cross-claim, leave to discontinue should be granted, but it would be inappropriate to determine the validity of the abandoned claims or to require Mr Hill to answer them merely for a costs determination. Mr Piscopo had not proved service on Ms Walker and had filed no evidence explaining why the three cross-respondents were not part of the settlement. The appropriate order was therefore no order as to costs of the proceedings against the fourth, fifth and tenth cross-respondents, but the motion seeking costs was misconceived and, as reasonably opposed by Mr Hill, should be dismissed with costs. Mr Piscopo should not be entitled to claim an...

Court Disposition

Leave granted to file a notice of discontinuance against the fourth, fifth and tenth cross-respondents; no order as to costs in those proceedings; motion dated 3 December 2010 dismissed with costs; proceedings otherwise dismissed.

Orders

  • ['There be no order as to costs in the proceedings against the fourth, fifth and tenth cross-respondents.' 'Leave be granted to the respondent/cross-claimant to file a notice of discontinuance of his cross-claim against the fourth, fifth and tenth cross-respondents on or before 23 December 2010.' "The...