Theo v Official Trustee in Bankruptcy [1998] FCA 862

Theo v Official Trustee in Bankruptcy [1998] FCA 862

Order No 5 was set aside insofar as it related to the costs orders of 2 September 1996 because the costs order in favour of the trustees for sale was made in favour of non-parties who had not materially assisted the substantive application, and this was based on a misapprehension by the Court when making the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
23 July 1998
Procedural Posture
Applications Under Slip Rule and for Leave to Appeal / Post Trial, Applications to Set Aside Prior Orders and for Leave to Appeal Against Costs Orders
Outcome
Order No 5 set aside in relation to the costs orders of 2 September 1996; leave to appeal from those costs orders granted and appeal allowed; costs orders deleted; application to appeal from Cooper J's 1995 costs orders dismissed as incompetent; leave to set aside other orders of 7 November 1996 refused; no order as...
Legal Topics
['slip Rule' 'jurisdiction for Awarding Costs to Non Parties' 'appeals Against Costs Orders' 'setting Aside Orders for Misapprehension']
['practice and Procedure' 'bankruptcy' 'costs'] ['slip Rule' 'jurisdiction for Awarding Costs to Non Parties' 'appeals Against Costs Orders' 'setting Aside Orders for Misapprehension']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Applications Under Slip Rule and for Leave to Appeal / Post Trial, Applications to Set Aside Prior Orders and for Leave to Appeal Against Costs Orders

Legal Issues

  1. 1 ['Whether Order No 5 should be set aside under the slip rule for misapprehension regarding costs orders in favour of non-parties' 'Whether the applicant should be granted leave to appeal from costs orders made by Kiefel J on 2 September 1996' 'Whether costs orders in favour of non-parties were appropriate' 'Whether the applicant can seek leave to appeal from costs orders of Cooper J made in 1995']

Ratio Decidendi

Order No 5 was set aside insofar as it related to the costs orders of 2 September 1996 because the costs order in favour of the trustees for sale was made in favour of non-parties who had not materially assisted the substantive application, and this was based on a misapprehension by the Court when making the original order. Leave to appeal from those costs orders was granted, the appeal allowed, and the costs orders deleted.

Court Disposition

Order No 5 set aside in relation to the costs orders of 2 September 1996; leave to appeal from those costs orders granted and appeal allowed; costs orders deleted; application to appeal from Cooper J's 1995 costs orders dismissed as incompetent; leave to set aside other orders of 7 November 1996 refused; no order as...

Orders

  • ['Anthony James Bennett and Kenneth Philp be joined as respondents to the application to set aside Order No 5 and to the motion for leave to appeal from the orders made by Kiefel J on 2 September 1996.' 'Order No 5 set aside but only insofar as it relates to paragraph 2 of the September Orders (costs orders).'...