Sheahan (Trustee), in the matter of Livingstone (Bankrupt) v Livingstone [2003] FCA 620

Sheahan (Trustee), in the matter of Livingstone (Bankrupt) v Livingstone [2003] FCA 620

Because the second and third respondents filed a notice of motion without revealing the bases for the relief and without supporting affidavit, failed to respond to the applicant's Calderbank letter within the specified time or thereafter, and only offered to withdraw on the day their submissions were due, it was appropriate to dismiss the notice of motion and order them to pay the applicant's costs on an indemnity basis.

Jurisdiction
Australia
Judgment Date
12 June 2003
Procedural Posture
Bankruptcy Proceeding; Practice and Procedure Notice of Motion / Ex Tempore Reasons on Dismissal by Consent of the Second and Third Respondents' Notice of Motion and Costs
Outcome
The second and third respondents' notice of motion was dismissed and they were ordered to pay the applicant's costs on an indemnity basis.
Legal Topics
['notice of Motion' 'jurisdiction Challenge' 'calderbank Offer' 'indemnity Costs']
['bankruptcy' 'practice and Procedure' 'costs'] ['notice of Motion' 'jurisdiction Challenge' 'calderbank Offer' 'indemnity Costs']

Case Brief

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Procedural Posture

Bankruptcy Proceeding; Practice and Procedure Notice of Motion / Ex Tempore Reasons on Dismissal by Consent of the Second and Third Respondents' Notice of Motion and Costs

Legal Issues

  1. 1 ["Whether the second and third respondents' notice of motion should be dismissed by consent." "Whether the second and third respondents should pay the applicant's costs of the notice of motion on an indemnity basis after not accepting or responding to a Calderbank offer within the specified time." 'Whether costs should be taxed forthwith and paid forthwith upon issue of a certificate of taxation.']

Ratio Decidendi

Because the second and third respondents filed a notice of motion without revealing the bases for the relief and without supporting affidavit, failed to respond to the applicant's Calderbank letter within the specified time or thereafter, and only offered to withdraw on the day their submissions were due, it was appropriate to dismiss the notice of motion and order them to pay the applicant's costs on an indemnity basis.

Court Disposition

The second and third respondents' notice of motion was dismissed and they were ordered to pay the applicant's costs on an indemnity basis.

Orders

  • ["The second and third respondents' notice of motion dated 14 May 2003 be dismissed." "The second and third respondents pay the applicant's costs of and incidental to the notice of motion, including costs thrown away by reason of the withdrawal of the notice of motion, on an indemnity basis."]