MacKay & Ors v Ashwood Enterprises Ltd & Ors

MacKay & Ors v Ashwood Enterprises Ltd & Ors

The court had jurisdiction to make a final costs order on a without notice application, and it was a proper exercise of discretion in the exceptional circumstances of the case, given the defendants' conduct and the need to protect the receivers' position. The defendants had the right to apply to set aside or vary the order, but their unexplained delay and failure to provide evidence justified the judge's refusal to set aside the order.

Parties
Claimant/respondent/court Appointed Receiver: Bruce Mackay; Claimant/respondent/court Appointed Receiver: Graham Bushby; Defendant/appellant: Ashwood Enterprises Ltd; Defendant/appellant: Thomas Bernard McFeely; Defendant/appellant: Conal Derek McFeely; Defendant: Noel McFeely; Defendant: Ciaran McFeely; Defendant: Steve Evans
Jurisdiction
England and Wales
Judgment Date
31 July 2013
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeals From High Court Orders
Outcome
Appeals dismissed
Legal Topics
Costs Orders, Without Notice Applications, Receivership, Injunctions, Summary Assessment of Costs
Civil Procedure Property Law Costs Orders Without Notice Applications Receivership Injunctions Summary Assessment of Costs

Case Brief

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Parties

Bruce Mackay

Claimant/respondent/court Appointed Receiver

Graham Bushby

Claimant/respondent/court Appointed Receiver

Ashwood Enterprises Ltd

Defendant/appellant

Thomas Bernard McFeely

Defendant/appellant

Conal Derek McFeely

Defendant/appellant

Noel McFeely

Defendant

Ciaran McFeely

Defendant

Steve Evans

Defendant

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeals From High Court Orders

Legal Issues

  1. 1 Whether the court had jurisdiction to make a final costs order against defendants on a without notice application
  2. 2 Whether it was a proper exercise of discretion to make such an order
  3. 3 Whether the defendants could apply to set aside or vary the costs order under the liberty to apply provision

Ratio Decidendi

The court had jurisdiction to make a final costs order on a without notice application, and it was a proper exercise of discretion in the exceptional circumstances of the case, given the defendants' conduct and the need to protect the receivers' position. The defendants had the right to apply to set aside or vary the order, but their unexplained delay and failure to provide evidence justified the judge's refusal to set aside the order.

Court Disposition

Appeals dismissed

Orders

  • Both appeals are dismissed.
  • The costs order made by the High Court stands.