Fitzgerald v Fitzgerald [2021] FCAFC 225

Federal Court of Australia

Fitzgerald v Fitzgerald [2021] FCAFC 225 Appeal from: Fitzgerald v Fitzgerald [2020] FCA 1615 Fitzgerald v Fitzgerald [2020] FCCA 3632

File numbers: QUD 375 of 2020 QUD 12 of 2021

Judgment of: LOGAN, RANGIAH AND DOWNES J

Date of judgment: 10 November 2021

Catchwords: BANKRUPTCY AND INSOLVENCY – appeal from decision of primary judge to dismiss application for review of Registrar's decision – where Registrar dismissed application under s 40(1)(g) of the Bankruptcy Act 1966 (Cth) – where that order upheld on review in the original jurisdiction – whether appellant has a counter-claim, set-off or cross demand equal to, or in excess of, the judgment debt – whether the Court should go behind the judgment debt – judgment debt one created by a costs order – where appellant alleged no error of principle in primary judge's decision – where in proceedings in which costs order made appellant's cause of action pleaded without precision and depended on appellant's account of arrangement with respondents not supported by contemporaneous documentation – appeal dismissed BANKRUPTCY AND INSOLVENCY – appeal from decision of the Federal Circuit Court to grant a sequestration order against the appellant – whether primary judge erred in not adjourning the creditor's petition till resolution of appeal against related decision in this Court – where no suggestion that bankruptcy notice has been complied with – where no reason to transfer proceedings to this Court – appeal dismissed PRACTICE AND PROCEDURE – interlocutory application for appeal to be dismissed for want of prosecution – where interests of justice support hearing of appeals on merits – interlocutory application dismissed COSTS – continued non-compliance with case management directions – where appellant already subject to fixed cost order at an interlocutory stage – costs allowed for preparation of both original and supplementary submissions of respondents