By Hayley Hitch, Solicitor and Stephen Mullette, Principal of Matthews Folbigg in our Insolvency, Restructuring and Debt Recovery Group.
It is the stuff of the classic cop show or court room thriller. The bad guy is about to get away with the crime, until there is an application to introduce “fresh evidence”.
But how fresh is fresh enough?
In the real world, if the application is found to be just an attempt to re-hear a matter without in fact bringing new evidence before the Court, the application will be dismissed and potentially a cost order may be made against the applicant.
In Baycorp Collections PDL (Australia) Pty Ltd v Reaper  FCCA 2458, the bankrupt, Mr Reaper, sought a stay of orders made a year earlier, for the sale of the bankrupt’s property by his trustee in bankruptcy. He did so, (despite having previously failed “in separate appeals or applications made by Mr Reaper to Pagone J, Davies J, Tracey J, Middleton J and Mortimer J”) on the basis that he had obtained “fresh evidence” that his bankruptcy should be annulled. This would prove, according to the bankrupt; that the judgment debt, on which he had been bankrupted, was obtained irregularly.