Throvena v Pitman [2002] FCAFC 238

FEDERAL COURT OF AUSTRALIA

Throvena Pty Ltd v Pitman [2002] FCAFC 238 BANKRUPTCY – appeal against interlocutory order – whether primary judge erred in ordering that the appellants pay the first respondent's costs up to and until he was effectively released – whether primary judge should have ordered the first respondent to pay the appellants' costs – whether the appellants were "almost certain to have succeeded" if the matter had been fully tried – extension of time within which to seek leave to appeal granted – leave to appeal refused with costs as decision appealed from was not attended with sufficient doubt and substantial injustice would not be caused to the appellants if the decision were wrong and leave were refused – proposed appeal lacks a chance of success Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, applied Carr v Finance Corporation of Australia Ltd (No. 1) (1981) 147 CLR 246, applied THROVENA PTY LTD ACN 001 738 763, HAPDAY HOLDINGS PTY LTD ACN 001 185 253 and MACQUARIE HEALTH CORPORATION ACN 003 531 860 v ALAN PITMAN and WARREN PANTZER as Trustee for the estate of Thomas Richard Wenkart No N 205 of 2002 SPENDER, MOORE, KIEFEL JJ SYDNEY 16 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 205 OF 2002

BETWEEN: THROVENA PTY LTD ACN 001 738 763

HAPDAY HOLDINGS PTY LTD ACN 001 185 253 MACQUARIE HEALTH CORPORATION ACN 003 531 860

APPELLANTS

AND: ALAN PITMAN

FIRST RESPONDENT

WARREN PANTZER as Trustee for the estate of Thomas Richard Wenkart

SECOND RESPONDENT

JUDGES: SPENDER, MOORE, KIEFEL JJ

DATE OF ORDER: 16 AUGUST 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The time within which to seek leave to appeal be extended to 12 August 2002. 2. Leave to appeal be refused. 3. The appellants pay the first respondent's costs of the application, including the costs ordered to be paid by Justice Hely on 6 June 2002 in respect of a notice of motion seeking a stay of the costs order the subject of the present appeal, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.