FEDERAL COURT OF AUSTRALIA
Seafolly Pty Ltd v Madden (No 3) [2013] FCA 316
Citation: Seafolly Pty Ltd v Madden (No 3) [2013] FCA 316 Parties: SEAFOLLY PTY LTD (ACN 001 537 748) v LEAH MADDEN File number: VID 764 of 2010 Judge: TRACEY J Date of judgment: 9 April 2013 Catchwords: COSTS – Application for lump sum costs order – application for stay pending hearing and determination of appeal – whether proper foundation for acceding to application for stay – unnecessary to resolve application for fixing of lump sum Legislation: Bankruptcy Act 1966 (Cth)
Federal Court Rules 2011 (Cth)Cases cited: ACCC v BMW (Aust) Limited (No 2) [2003] FCA 864 – referred to
Alexander v Cambridge Credit Corp Ltd (Receivers Appointed) (1985) 2 NSWLR 685 - applied
Momentum Productions Pty Ltd v Lewarne [2007] FCA 1988 – referred to
Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 – referred to
Premier Pet Pty Ltd v Brown [2013] FCA 17 – referred to
Seafolly Pty Ltd v Madden (No 2) [2013] FCA 46 – referred to
Seafolly Pty Ltd v Madden [2012] FCA 1346 – referred toDate of hearing: 9 April 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 32 Counsel for the Applicant: Mr E J C Heerey Solicitor for the Applicant: K & L Gates Counsel for the Respondent: Mr G S Clarke SC and Mr I P Horak Solicitor for the Respondent: Phillips Ormonde Fitzpatrick Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 764 of 2010
BETWEEN: SEAFOLLY PTY LTD (ACN 001 537 748)
ApplicantAND: LEAH MADDEN
Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
9 APRIL 2013
WHERE MADE:
MELBOURNE
UPON THE RESPONDENT UNDERTAKING TO THE COURT THAT:
She will not until the hearing and determination of appeal (VID 1108 of 2012) or further order, without providing 21 days prior notice to the solicitors for the Applicant, do or attempt to do any of the following:
(a)sell or transfer any of her interest in her property at 7 La Spezia Court, Isle of Capri, Queensland being the land more particularly described in certificate of title reference 14235170 being part of Exhibit LSM-2 to the affidavit of the Respondent sworn on 13 march 2013 (“the La Spezia Property”); and
(b)encumber any of her interest in the La Spezia Property to an extent greater than $400,000.
THE COURT ORDERS THAT:
1. The enforcement of the costs order made against the Respondent on 29 November 2012 be stayed until the hearing and determination of the appeal (VID 1108 of 2012) without prejudice to the Applicant’s rights to apply for taxation of those costs pursuant to Division 40.2 of the Federal Court Rules 2011 (Cth).
2.The parties’ costs of the Respondent’s interlocutory application filed on 26 February 2013 be reserved.
3.The Applicant’s interlocutory application filed 22 February 2013 be adjourned to a date to be fixed.
4.The parties’ costs of the Applicant’s interlocutory application filed 22…
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- Case
- [2013] FCA 316
- Decision Date
CaseChat Overview and Summary
In this case, both parties filed interlocutory applications. Seafolly sought a lump sum costs order, while Ms Madden applied for a stay on the enforcement of the costs orders pending the appeal. The court's primary task was to decide whether there was a proper foundation for granting Ms Madden's stay application and whether it was necessary to resolve Seafolly's lump sum costs application. The court considered the principles guiding the exercise of discretion in granting stays, including the balance of convenience and the competing rights of the parties. Ms Madden argued that she had limited assets and would need to sell her home to pay the costs, which would be unfair if her appeal succeeded. Seafolly, on the other hand, argued that Ms Madden had assets she could use to meet her obligations.
The court found that a stay, subject to Ms Madden's undertakings not to dispose of or encumber her property beyond a certain limit, would be fair in the present circumstances. It was not necessary to resolve Seafolly's lump sum costs application at that time. The court ordered that the enforcement of the costs order be stayed until the hearing and determination of the appeal without prejudice to Seafolly's rights to apply for taxation of those costs. The parties' costs of the interlocutory applications were reserved.
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