Davis v Insolvency and Trustee Service Australia [2009] FCA 729

Davis v Insolvency and Trustee Service Australia [2009] FCA 729

Because the applicant abandoned the leave-to-appeal relief after the second respondent had prepared for the motion, no evidence was tendered in support of the interim orders, and the undertakings gave only limited additional advantage over existing inter partes undertakings, the applicant was granted leave to discontinue the leave-to-appeal relief but ordered to pay the second respondent's costs on the ordinary basis rather than an indemnity basis.

Jurisdiction
Australia
Judgment Date
30 June 2009
Procedural Posture
Notice of Motion Seeking Leave to Appeal and Interim Relief / Amended Notice of Motion; Leave to Discontinue Leave to Appeal Relief; Undertakings and Costs Determined
Outcome
Leave to file the Amended Notice of Motion was granted; undertakings by the second respondent were noted; leave to discontinue the leave-to-appeal relief was granted; the applicant was ordered to pay the second respondent's costs, taxable and payable forthwith.
Legal Topics
['leave to Appeal' 'interlocutory Relief' 'discontinuance' 'costs' 'undertakings to the Court']
['civil Procedure' 'child Support Enforcement'] ['leave to Appeal' 'interlocutory Relief' 'discontinuance' 'costs' 'undertakings to the Court']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion Seeking Leave to Appeal and Interim Relief / Amended Notice of Motion; Leave to Discontinue Leave to Appeal Relief; Undertakings and Costs Determined

Legal Issues

  1. 1 ['Whether the applicant should be granted leave to file an Amended Notice of Motion dated 29 June 2009.' 'Whether the applicant should be granted leave to discontinue proceeding NSD 535 of 2009 so far as it concerned leave to appeal.' 'Whether interim restraint or stay relief should be granted or addressed by undertakings concerning the Queensland property and moneys received under the s 72A notice.' 'Whether costs should be ordered in favour of the second respondent, and whether on an indemnity basis.']

Ratio Decidendi

Because the applicant abandoned the leave-to-appeal relief after the second respondent had prepared for the motion, no evidence was tendered in support of the interim orders, and the undertakings gave only limited additional advantage over existing inter partes undertakings, the applicant was granted leave to discontinue the leave-to-appeal relief but ordered to pay the second respondent's costs on the ordinary basis rather than an indemnity basis.

Court Disposition

Leave to file the Amended Notice of Motion was granted; undertakings by the second respondent were noted; leave to discontinue the leave-to-appeal relief was granted; the applicant was ordered to pay the second respondent's costs, taxable and payable forthwith.

Orders

  • ['Leave to the applicant to file in Court an Amended Notice of Motion dated 29 June 2009.' "The second respondent by her solicitor undertakes to the Court that, pending the resolution of proceeding NSD 52 of 2009, the second respondent will not instruct the first respondent to take any further action under the...