Murray v Duddy [2009] FCA 204

Murray v Duddy [2009] FCA 204

The appellants' motion for leave to rely on further evidence and to vacate the hearing date was dismissed because Mr Donnelly's proposed evidence was not shown to be relevant or capable of affecting the appeal, no explanation was given for not adducing it below, the appellants had not complied with appeal preparation requirements, their unreadiness was inadequately explained, and prejudice to the respondent outweighed any potential unfairness. When the appeal was then called on, counsel for the appellants could not make submissions in support of it, leaving no basis for any order other than dismissal. The appellants' conduct warranted indemnity costs.

Jurisdiction
Australia
Judgment Date
05 March 2009
Procedural Posture
Bankruptcy Appeal From Federal Magistrates Court Orders Upholding a Creditor's Petition and Sequestrating the Appellants' Estate / Appeal Hearing With Notices of Motion Seeking Vacation of the Hearing Date and Leave to Rely on Further Evidence
Outcome
Notice of motion filed 27 February 2009 dismissed; notice of motion filed 5 January 2009 dismissed; appeal dismissed; appellants ordered to pay the respondent's costs on an indemnity basis.
Legal Topics
["creditor's Petition" 'sequestration Order' 'appeal From Federal Magistrates Court' 'fresh Evidence on Appeal' 'adjournment or Vacation of Hearing Date' 'failure to Comply With Appeal Preparation Orders' 'indemnity Costs']
['bankruptcy' 'civil Procedure' 'costs'] ["creditor's Petition" 'sequestration Order' 'appeal From Federal Magistrates Court' 'fresh Evidence on Appeal' 'adjournment or Vacation of Hearing Date' 'failure to Comply With Appeal Preparation Orders' 'indemnity Costs']

Case Brief

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Procedural Posture

Bankruptcy Appeal From Federal Magistrates Court Orders Upholding a Creditor's Petition and Sequestrating the Appellants' Estate / Appeal Hearing With Notices of Motion Seeking Vacation of the Hearing Date and Leave to Rely on Further Evidence

Legal Issues

  1. 1 ['Whether the appellants should be granted leave to rely on further evidence from their former legal representative, Mr Donnelly.' 'Whether the hearing date should be vacated because Mr Donnelly was unavailable and the appellants were not ready to proceed with the appeal.' 'Whether the appeal should be dismissed when counsel for the appellants could not make submissions in support of it.' 'Whether the respondent should receive indemnity costs of the notices of motion and the appeal.']

Ratio Decidendi

The appellants' motion for leave to rely on further evidence and to vacate the hearing date was dismissed because Mr Donnelly's proposed evidence was not shown to be relevant or capable of affecting the appeal, no explanation was given for not adducing it below, the appellants had not complied with appeal preparation requirements, their unreadiness was inadequately explained, and prejudice to the respondent outweighed any potential unfairness. When the appeal was then called on, counsel for the appellants could not make submissions in support of it, leaving no basis for any order other than dismissal. The appellants' conduct warranted indemnity costs.

Court Disposition

Notice of motion filed 27 February 2009 dismissed; notice of motion filed 5 January 2009 dismissed; appeal dismissed; appellants ordered to pay the respondent's costs on an indemnity basis.

Orders

  • ['The notice of motion filed by the appellants on 27 February 2009 is dismissed.' 'The notice of motion filed by the appellants on 5 January 2009 is dismissed.' 'The appeal is dismissed.' "The appellants are to pay the respondent's costs of the notices of motion and the appeal on an indemnity basis." "The...