Devere Holdings Pty Ltd v Lopez [2008] FCA 1091

Devere Holdings Pty Ltd v Lopez [2008] FCA 1091

Leave to appeal was refused because the applicants' defence positively pleaded that consideration or benefits beyond $45,000 were provided under the relevant agreements, and those pleaded benefits went to the core issues under s 120 of the Bankruptcy Act 1966 (Cth). The Federal Magistrate was correct, or at least the decision was not attended with sufficient doubt, in ordering particulars identifying and valuing those benefits and related matters so the Trustees could know the case they had to meet. In any event, no substantial injustice would result from refusing leave, as any valuation costs could be addressed by costs if the applicants succeeded. Because leave was refused, it was...

Jurisdiction
Australia
Judgment Date
24 July 2008
Procedural Posture
Application for Leave to Appeal and for a Stay on Appeal From the Federal Magistrates Court of Australia / Applications for Leave to Appeal and for a Stay Dismissed
Outcome
The applications for leave to appeal and for a stay were dismissed with costs.
Legal Topics
['leave to Appeal' 'stay Application' 'further and Better Particulars of Defence' 'void Transfers Under S 120(1) of the Bankruptcy Act 1966 (cth)' 'evidentiary Burden' 'ratification' 'estoppel']
['practice and Procedure' 'bankruptcy'] ['leave to Appeal' 'stay Application' 'further and Better Particulars of Defence' 'void Transfers Under S 120(1) of the Bankruptcy Act 1966 (cth)' 'evidentiary Burden' 'ratification' 'estoppel']

Case Brief

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Procedural Posture

Application for Leave to Appeal and for a Stay on Appeal From the Federal Magistrates Court of Australia / Applications for Leave to Appeal and for a Stay Dismissed

Legal Issues

  1. 1 ["Whether leave should be granted to appeal from orders requiring further and better particulars of paragraphs 5, 10.6 and 10.7 of the applicants' Proposed Amended Defence." 'Whether the decision ordering particulars of the monetary value of benefits pleaded in the defence was attended with sufficient doubt to warrant reconsideration.' 'Whether substantial injustice would result if leave were refused, supposing the decision below to be wrong.' 'Whether the related stay application required consideration if leave to appeal was refused.']

Ratio Decidendi

Leave to appeal was refused because the applicants' defence positively pleaded that consideration or benefits beyond $45,000 were provided under the relevant agreements, and those pleaded benefits went to the core issues under s 120 of the Bankruptcy Act 1966 (Cth). The Federal Magistrate was correct, or at least the decision was not attended with sufficient doubt, in ordering particulars identifying and valuing those benefits and related matters so the Trustees could know the case they had to meet. In any event, no substantial injustice would result from refusing leave, as any valuation costs could be addressed by costs if the applicants succeeded. Because leave was refused, it was...

Court Disposition

The applications for leave to appeal and for a stay were dismissed with costs.

Orders

  • ['The applications for leave to appeal and for a stay be dismissed.' 'The applicants pay the respondents costs of the application.']