Ashton v Prentice

[1998] FCA 1464

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE – application for reopening of a case after reasons published but not entered – medical condition of witness said to have become apparent only after reasons published – whether adjournment should be granted to gather further medical evidence – whether that evidence could affect the findings made.

ANDREW CRAIG ASHTON v
MAXWELL WILLIAM PRENTICE & ORS

NG 8183 of 1997

HILL J
SYDNEY
20 NOVEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 8183  of   1997

BETWEEN:

ANDREW CRAIG ASHTON
Applicant

AND:

MAXWELL WILLIAM PRENTICE
Respondent

MAXWELL WILLIAM PRENTICE
Cross Claimant

ANDREW CRAIG ASHTON
First Cross Respondent

ERIC ABRAHAM JURY (SNR)
Second Cross Respondent

SONIA SADIE JURY
Third Cross Respondent

WILLIAM ABRAHAM JURY
Fourth Cross Respondent

HOUDA JURY
Fifth Cross Respondent

JUDGE:

HILL J

DATE OF ORDER:

20 NOVEMBER 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The Application for adjournment of the motion be dismissed.

2. The motion be dismissed.

3. The Applicant pay the Respondent’s costs of the motion.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 8183 of 1997

BETWEEN:

ANDREW CRAIG ASHTON
Applicant

AND:

MAXWELL WILLIAM PRENTICE
Respondent

MAXWELL WILLIAM PRENTICE
Cross Claimant

ANDREW CRAIG ASHTON
First Cross Respondent

ERIC ABRAHAM JURY (SNR)
Second Cross Respondent

SONIA SADIE JURY
Third Cross Respondent

WILLIAM ABRAHAM JURY
Fourth Cross Respondent

HOUDA JURY
Fifth Cross Respondent

JUDGE:	HILL J
DATE:	20 NOVEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

On 23 October 1998 I delivered reasons in these proceedings.   I indicated that I proposed to declare  a transfer  of the property at 4 Molloy Avenue, South Coogee from Mr Jury, the Bankrupt, to Mr Ashton to be void.  I ordered draft short minutes to be prepared to give effect to my reasons with a view to hearing later argument as to the form those short minutes should take.  I did so, inter alia, on the basis that I was aware that there was an issue between the parties as  to the status of   the lease which Mr Ashton purported to enter into in favour of Mr Jury which had not been the subject of argument.

The matter then came before me on 2 November 1998.  At that  time counsel for Mr Ashton sought to move the Court that I reopen the hearing on  the basis of certain medical evidence.  I ordered that any  evidence in  support of  that  motion be filed  on  or before 9 November and  stood over the motion until 16 November 1998 when I would hear argument on the question whether I would give leave to Mr Ashton to reopen his case.   I also indicated I would hear argument on that day as to the form of orders.

A formal  motion was filed with the Registry on 13 November, returnable on 16 November 1998.   In support of that motion there was filed an affidavit of Mr…