FEDERAL COURT OF AUSTRALIA
Michael Wilson & Partners Ltd v Porter [2022] FCA 336
Appeal from: Application for extension of time and leave to appeal: Porter, in the matter of Slater (No 3) [2021] FCA 688 File number: NSD 767 of 2021 Judgment of: STEWART J Date of judgment: 1 April 2022 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – where applicant not a party in proceeding below – where judgment appealed from includes both final and interlocutory orders – where draft amended notice of appeal seeks to raise new grounds – where amounts in dispute are modest and stakes in the appeal are low – where no substantial injustice would arise if leave to appeal were to be refused – where grant of leave for the applicant to pursue litigation described as “seemingly interminable” and “pathological” would be contrary to s 37M of the Federal Court of Australia Act 1976 (Cth) – leave to appeal refused Legislation: Bankruptcy Act 1966 (Cth)
Corporations Act 2001 (Cth) s 511 (repealed), Sch 2 (Insolvency Practice Schedule (Corporations)) s 90-15
Cross Border Insolvency Act 2008 (Cth) s 6, Sch 1 (Model Law on Cross Border Insolvency of the United Nations Commission on International Trade) Arts 2, 17, 21, 22
Federal Court of Australia Act 1976 (Cth) ss 24(1A), 37M
Federal Court (Bankruptcy) Rules 2005 (Cth) rr 2.03, 14.03
Federal Court Rules 2011 (Cth) rr 2.25(3)(b), 35.13, 36.03, 36.05
Cases cited: Anying Group Pty Ltd v Wang [2012] FCA 702
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424
Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; 54 ALR 767
Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317
Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2011] FCAFC 89; 281 ALR 38
Georges v Seaborn International Pty Ltd (Trustee) [2012] FCA 294
Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; 104 FCR 564
Kireeva v Bedzhamov [2021] EWHC 2281 (Ch)
Kireeva v Bedzhamov [2022] EWCA Civ 35
In re Kooperman (1928) 13 B&CR 49; [1928] WN 101
Michael Wilson & Partners Ltd v Emmott [2019] EWCA Civ 219; [2019] 4 WLR 53
Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315; 396 ALR 497
N and E Bowder Pty Ltd v Australian Keg Company Pty Ltd [2014] FCA 288; 220 FCR 166
Nationwide News Pty Ltd v Rush [2018] FCAFC 70
Palmer (Trustee), in the matter of Slater (Bankrupt) (No 2) [2016] FCA 960
Palmer v Registrar-General of Land Titles of the Australian Capital Territory [2017] ACTSC 407; 181 ACTR 1
Power Ledger Pty Ltd v Griffiths [2021] FCA 624; 308 IR 147
Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCAFC 16; 265 ALR 112
Re Universal Distributing Co Ltd [1933] HCA 2; 48 CLR 171
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- AGLC
- Michael Wilson & Partners Ltd v Porter [2022] FCA 336
- Case
- [2022] FCA 336
- Decision Date
CaseChat Overview and Summary
The legal issues the court needed to address included whether the applicant, who was not a party in the proceeding below, was entitled to leave to appeal, and whether the stakes in the appeal were sufficient to warrant the grant of leave. The court also had to consider whether the applicant's proposed new grounds of appeal were arguable and whether there would be a substantial injustice if leave to appeal were to be refused.
The court found that the stakes in the appeal were low, and no substantial injustice would arise if leave to appeal were to be refused. The court also found that the grant of leave for the applicant to pursue litigation would be contrary to section 37M of the Federal Court of Australia Act 1976 (Cth). The court concluded that the proposed new grounds of appeal were not arguable, and the application for leave to appeal was therefore refused. The court also dismissed the application for an extension of time and the respondents' application for security for costs. The proceeding was dismissed with costs, and the respondents' costs were to be quantified on a lump sum basis.
Orders
Orders of the court
1. The application for an extension of time be dismissed.
2. Leave to appeal be refused.
3. The respondents’ application for security for costs be dismissed.
4. The proceeding be dismissed with costs, such costs to include all the costs of the proceeding.
5. The respondents’ costs be quantified on a lump sum basis.
6. On or before 21 April 2022, the respondents file and serve an affidavit constituting a costs summary in accordance with paragraphs 4.10 to 4.12 of the Costs Practice Note (GPN-COSTS).
7. On or before 5 May 2022, the applicant file and serve any affidavit constituting a costs response in accordance with paragraphs 4.13 to 4.14 of GPN-COSTS.
8. On or before 12 May 2022, the parties file and serve any submissions (not exceeding five pages) in support of their respective positions.
9. The quantification of the lump sum be referred to a Registrar of the Court for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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