CIVIL PROCEDURE — stay of costs orders pending appeal — where applicant obtained judgment from filing costs certificates in the District Court — where primary judge set aside judgment — where primary judge has not yet made costs orders — whether balance of convenience favours the applicant
CIVIL PROCEDURE — application for expedition of appeal — whether circumstances appropriate for grant of expedition — where bankruptcy proceedings commenced in the Federal Court — where Federal Court hearing forthcoming — heavy burden to justify convening a Court of Appeal bench — whether dictates of justice favour expedition
Quick Take
1A stay of a costs order that has not yet been made lacks a proper basis; the balance of convenience favours allowing the primary judge to determine costs in the first instance.
2The heavy burden of justifying expedition of an appeal — requiring assembly of a three-judge bench at short notice and potential displacement of other litigants — is not met merely because parallel bankruptcy proceedings are on foot, particularly where the Federal Court may adjourn those proceedings pending the appeal and the appellant can issue a fresh bankruptcy notice if ultimately successful.
3Where a judgment debt founding a bankruptcy notice is subject to appeal on genuine and arguable grounds, the principles in Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137 support the proposition that the bankruptcy court should generally not proceed to sequestrate the debtor's estate, and this reasoning extends to applications to set aside a bankruptcy notice.
