Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Lahood v Bank of Western Australia Ltd (No 3) [2013] FCA 861 Citation: Lahood v Bank of Western Australia Ltd (No 3) [2013] FCA 861
Appeal from: Bank of Western Australia Ltd v David Lahood [2013] FMCA 139
Parties: DAVID LAHOOD v BANK OF WESTERN AUSTRALIA LTD and COMMONWEALTH BANK OF AUSTRALIA LIMITED (ABN 48 123 123 124) and COMMONWEALTH BANK OF AUSTRALIA LIMITED (ABN 48 123 123 124)
File number: NSD 317 of 2013
Judge: KATZMANN J
Date of judgment: 26 August 2013
Catchwords: BANKRUPTCY – Sequestration order – appeal from Federal Magistrates Court – creditor's petition – where sequestration order based on judgment in Supreme Court of NSW – request for adjournment denied – whether discretion of primary judge miscarried – functions of appellate court on appeal from exercise of discretion – Bankruptcy Act 1966 (Cth). PRACTICE AND PROCEDURE – Discretion of the Court to receive further evidence on appeal against the making of a sequestration order – principles governing admission of further evidence – cogency required. EVIDENCE – Opinion evidence – expert evidence. APPEAL AND NEW TRIAL – Whether leave to appeal required from refusal of adjournment following final orders.
Legislation: Federal Court of Australia Act 1976 (Cth) ss 37M, 24(1A), 43(1) Bankruptcy Act 1966 (Cth) ss 40(1), 43(1), 52(1) Civil Procedure Act 2005 (NSW) s 101 Federal Magistrates Act 1999 (Cth) s 42 Federal Magistrates Court Rules 2001 (Cth) r 1.03
Cases cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 August v Commissioner of Taxation [2013] FCAFC 85 Coulton v Holcombe (1986) 162 CLR 1 CDJ v VAJ (1998) 197 CLR 172 Draper and Another v Official Trustee in Bankruptcy [2006] FCAFC 157 Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478 Gronow v Gronow (1979) 144 CLR 513 Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554 GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 Guss v Johnstone [2000] FCA 1455 Komba t/as Bora Homes Australia v AIM Site Hire Pty Ltd [2013] FCA 23 Lovell v Lovell (1950) 81 CLR 513 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Offshore and Ocean Engineering Pty Ltd (recs & mgrs apptd) (admin apptd) v Greenwich Contractors Pty Ltd [2012] NSWCA 371 Sali v SPC Ltd (1993) 116 ALR 625 House v The King (1936) 55 CLR 499 Sandell v Porter (1966) 115 CLR 666 Scheme and as Joint and Several Liquidators of the Scheme (2007) 245 ALR 389; [2007] FCAFC 136 Sobey v Nicoll and Davies as Joint and Several Receivers and Managers of the Property of Mercorella and the Freeman v National Australia Bank Limited [2003] FCAFC 200 SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 Totev v Sfar (2008) 167 FCR 193 Trade Practices Commission v Arnotts Ltd (No 5) (1990) 21 FCR 324 Yousif v Commonwealth Bank of Australia (2010) 193 IR 212; [2010] FCAFC 8
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