Maher v Commonwealth Bank of Australia & Ors [2007] FCA 113

Maher v Commonwealth Bank of Australia & Ors [2007] FCA 113

The applicant had no basis for a stay or declaration because the orders made by Finkelstein J on 26 July 2005 gave him the relief sought in his 8 July 2005 motion. No written or oral application to set aside the costs orders of 2 and 5 February 2004 was before Finkelstein J on 26 July 2005, and those costs orders remained in force. Because those underlying costs orders stood, the certificate of taxation of 9 June 2006 and related Registrar's order could not be set aside for want of jurisdiction on the applicant's asserted ground.

Jurisdiction
Australia
Judgment Date
14 February 2007
Procedural Posture
Notice of Motion in Federal Court Proceeding / Interlocutory Motions Heard on 9 February 2007 and Decided on 14 February 2007
Outcome
The applicant's two motions of which notice was given on 20 November 2006 were dismissed with costs.
Legal Topics
['stay of Orders' 'certificates of Taxation' "registrar's Orders" 'setting Aside Costs Orders' 'federal Court Rules O 37 R 10' 'federal Court of Australia Act 1976 (cth) S 35 A(5)']
['civil Procedure' 'costs'] ['stay of Orders' 'certificates of Taxation' "registrar's Orders" 'setting Aside Costs Orders' 'federal Court Rules O 37 R 10' 'federal Court of Australia Act 1976 (cth) S 35 A(5)']

Case Brief

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Procedural Posture

Notice of Motion in Federal Court Proceeding / Interlocutory Motions Heard on 9 February 2007 and Decided on 14 February 2007

Legal Issues

  1. 1 ['Whether orders made by Finkelstein J on 26 July 2005 should be treated as incapable of enforcement or stayed pending reasons for those orders.' 'Whether the applicant had made an oral application before Finkelstein J on 26 July 2005 to set aside the costs orders made on 2 and 5 February 2004.' "Whether the certificate of taxation dated 9 June 2006 or the Registrar's order dated 24 July 2006 should be set aside for want of jurisdiction."]

Ratio Decidendi

The applicant had no basis for a stay or declaration because the orders made by Finkelstein J on 26 July 2005 gave him the relief sought in his 8 July 2005 motion. No written or oral application to set aside the costs orders of 2 and 5 February 2004 was before Finkelstein J on 26 July 2005, and those costs orders remained in force. Because those underlying costs orders stood, the certificate of taxation of 9 June 2006 and related Registrar's order could not be set aside for want of jurisdiction on the applicant's asserted ground.

Court Disposition

The applicant's two motions of which notice was given on 20 November 2006 were dismissed with costs.

Orders

  • ['Each of the two motions of which the applicant gave notice on 20 November 2006 be dismissed with costs.']