Donald Financial Enterprises Pty Ltd v APIR Systems Ltd (No. 2) [2008] FCA 1269

Donald Financial Enterprises Pty Ltd v APIR Systems Ltd (No. 2) [2008] FCA 1269

The applicant had been without its money since 28 January 2004, so interest was appropriately payable up to judgment and the respondents' offer did not justify varying Order 6. The offers relied on for costs were not commensurate with the financial result flowing from the orders made on 30 July 2008, so Orders 7 and 8 were not vacated or varied. The stay application was not finally determined because a notice of appeal had only just been filed and the Court had not had an opportunity to consider its grounds in the context of the stay application.

Jurisdiction
Australia
Judgment Date
20 August 2008
Procedural Posture
Notice of Motion in Federal Court Proceeding / Application to Vacate and Vary Interest and Costs Orders Made on 30 July 2008, and for a Stay Pending Appeal
Outcome
The motion to vacate Orders 6, 7 and 8 was dismissed; the stay aspect was adjourned with liberty to apply; the respondents were ordered to pay the applicant's costs of opposing the motion to date.
Legal Topics
['vacation and Variation of Orders' 'pre Judgment Interest Under S 51 A' 'costs Following Offers' 'stay Pending Appeal']
['civil Procedure' 'costs' 'interest' 'appellate Procedure'] ['vacation and Variation of Orders' 'pre Judgment Interest Under S 51 A' 'costs Following Offers' 'stay Pending Appeal']

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Procedural Posture

Notice of Motion in Federal Court Proceeding / Application to Vacate and Vary Interest and Costs Orders Made on 30 July 2008, and for a Stay Pending Appeal

Legal Issues

  1. 1 ["Whether Order 6 for interest should be vacated or varied to stop interest running after 27 March 2007 or 21 April 2007 because of an offer to purchase the applicant's shares." "Whether Orders 7 and 8 for costs should be vacated or varied based on offers referred to in Ms Ellis' affidavit." 'Whether the orders made on 30 July 2008 should be stayed pending an appeal.']

Ratio Decidendi

The applicant had been without its money since 28 January 2004, so interest was appropriately payable up to judgment and the respondents' offer did not justify varying Order 6. The offers relied on for costs were not commensurate with the financial result flowing from the orders made on 30 July 2008, so Orders 7 and 8 were not vacated or varied. The stay application was not finally determined because a notice of appeal had only just been filed and the Court had not had an opportunity to consider its grounds in the context of the stay application.

Court Disposition

The motion to vacate Orders 6, 7 and 8 was dismissed; the stay aspect was adjourned with liberty to apply; the respondents were ordered to pay the applicant's costs of opposing the motion to date.

Orders

  • ['The motion for the vacation of Orders 6, 7 and 8 made on 30 July 2008 is dismissed.' 'Liberty for either party to apply for the motion to be re-listed at a mutually convenient date to all parties and the Court.' "The respondents pay the applicant's costs of opposing the motion to date."]