Transpacific Pty Ltd v Prudential Retirement Insurance and Annuity Company (No 2) [2011] FCA 1215

Transpacific Pty Ltd v Prudential Retirement Insurance and Annuity Company (No 2) [2011] FCA 1215

The vacation of the hearing and dissolution of the injunction restraining the first respondent from dealing with the aircraft, coupled with indemnity costs for the costs thrown away by the adjournment and strict case management orders for further preparation, is a fair resolution in the circumstances where the applicant could not proceed and the respondent should not be further prejudiced by delay.

Parties
Applicant: Transpacific Pty Ltd ACN 073 644 612; First Respondent: Prudential Retirement Insurance and Annuity Company; Second Respondent: David John Winterbottom; Third Respondent: David Paul Merryweather
Jurisdiction
Australia
Judgment Date
19 October 2011
Procedural Posture
Application in Existing Proceeding / Interlocutory; Application to Vacate Hearing, Costs, and Related Orders
Outcome
Application to vacate hearing granted; hearing vacated; injunctions dissolved; indemnity costs; procedural orders for preparation; liberty to apply.
Legal Topics
Adjournment of Hearing, Vacation of Trial Date, Indemnity Costs, Preparation for Trial, Injunctions Restraining Dealing With Secured Asset, Expert Evidence on Foreign Law
Practice and Procedure Injunctions Civil Procedure Costs Adjournment of Hearing Vacation of Trial Date Indemnity Costs Preparation for Trial +2 more

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Parties

Transpacific Pty Ltd ACN 073 644 612

Applicant

Prudential Retirement Insurance and Annuity Company

First Respondent

David John Winterbottom

Second Respondent

David Paul Merryweather

Third Respondent

Procedural Posture

Application in Existing Proceeding / Interlocutory; Application to Vacate Hearing, Costs, and Related Orders

Legal Issues

  1. 1 Should the hearing be vacated at the request of the applicant days before trial due to readiness and solicitor issues?
  2. 2 Should the injunction restraining the first respondent from dealing with the aircraft be dissolved in light of the adjournment?
  3. 3 Should indemnity costs be awarded for the vacation of the hearing?

Ratio Decidendi

The vacation of the hearing and dissolution of the injunction restraining the first respondent from dealing with the aircraft, coupled with indemnity costs for the costs thrown away by the adjournment and strict case management orders for further preparation, is a fair resolution in the circumstances where the applicant could not proceed and the respondent should not be further prejudiced by delay.

Court Disposition

Application to vacate hearing granted; hearing vacated; injunctions dissolved; indemnity costs; procedural orders for preparation; liberty to apply.

Orders

  • The hearing set down for 19-21, 24 and 25 October 2011 be vacated.
  • The applicant to pay the first respondent's costs thrown away by vacation of the hearing on an indemnity basis.