Marshall v Sheahan [1999] FCA 863

Marshall v Sheahan [1999] FCA 863

Interlocutory relief restraining settlement of the property sale contract will not be granted absent an undertaking as to damages and appropriate security by or on behalf of the bankrupt applicants; no exceptional circumstances were demonstrated to warrant departure from the general rule.

Parties
Applicant: Jillian Helen Marshall; Applicant: Richard John Cooper; Applicant: Simon Vincent Cooper; First Respondent: John Sheahan as Trustee of the bankrupt estates of Jillian Helen Marshall, Richard Cooper & Simon Vincent Cooper; Second Respondent: W J Fountain Pty Ltd (ACN 075 652 318); Third Respondent: William John Fountain
Jurisdiction
Australia
Judgment Date
04 June 1999
Procedural Posture
Application for Interlocutory Orders in Bankruptcy Proceedings / Hearing and Determination of Interlocutory Application
Outcome
Application for interlocutory relief declined.
Legal Topics
Interlocutory Injunction, Removal of Trustee, Undertaking as to Damages
Bankruptcy Equity Interlocutory Injunction Removal of Trustee Undertaking as to Damages

Case Brief

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Parties

Jillian Helen Marshall

Applicant

Richard John Cooper

Applicant

Simon Vincent Cooper

Applicant

John Sheahan as Trustee of the bankrupt estates of Jillian Helen Marshall, Richard Cooper & Simon Vincent Cooper

First Respondent

W J Fountain Pty Ltd (ACN 075 652 318)

Second Respondent

William John Fountain

Third Respondent

Procedural Posture

Application for Interlocutory Orders in Bankruptcy Proceedings / Hearing and Determination of Interlocutory Application

Legal Issues

  1. 1 Whether interlocutory relief restraining settlement of sale contract should be granted without an undertaking as to damages
  2. 2 Whether exceptional circumstances justify departure from the general rule requiring an undertaking as to damages for interlocutory injunction

Ratio Decidendi

Interlocutory relief restraining settlement of the property sale contract will not be granted absent an undertaking as to damages and appropriate security by or on behalf of the bankrupt applicants; no exceptional circumstances were demonstrated to warrant departure from the general rule.

Court Disposition

Application for interlocutory relief declined.

Orders

  • Application for interlocutory injunction restraining settlement of contract of sale for Rothmore Farm is dismissed.