Federal Court Denies Stay of Sequestration Order

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v [RESPONDENT] [2001] FCA 1890

[APPELLANT] v [NAME] [RESPONDENT]

N 1415 OF 2001 LINDGREN J 21 DECEMBER 2001 [APPELLANT]

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1415 OF 2001

BETWEEN: [APPELLANT]

APPELLANT

[RESPONDENT]

RESPONDENT

[APPELLANT] OF ORDER: 21 DECEMBER 2001

[APPELLANT]

THE COURT ORDERS THAT:

1. The motion brought by notice of motion filed on 11 October 2001 in so far as it seeks the relief in par (3) be dismissed.

2. The motion brought by notice of motion filed on 11 October 2001 in so far as it seeks the relief in pars (1) and (2) be stood over to the [ADDRESS] on 13 February 2002.

3. The appellant pay the respondent's costs of the motion to date. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1415 OF 2001

[APPELLANT]

APPELLANT

[RESPONDENT]

RESPONDENT

JUDGE: LINDGREN J

DATE: 21 DECEMBER 2001

PLACE: [APPELLANT] FOR

JUDGMENT 1 In this proceeding, [APPELLANT] ("Mr [APPELLANT]") has filed a notice of appeal from a judgment of Conti J given on 21 September 2001 in proceeding N 7880 of 2000. On that date, [NAME] made a sequestration order against Mr [APPELLANT]'s estate. I treat Mr [APPELLANT]'s application for a stay as made to a Judge under O 52 r 17 of the Federal Court Rules. 2 Apparently, the dispute between the parties has had a long history. [NAME] [RESPONDENT] ("Mr [RESPONDENT]") was the petitioning creditor. The order made by [NAME] was made pursuant to a remittal to him by a [ADDRESS] of this Court on 9 July 2001. 3 Because of the state of his health and the distance at which he resides from the Court, Mr [APPELLANT] has been permitted to appear on the hearing of his motion this morning by telephone. Mr [COUNSEL], solicitor, has appeared for the respondent to the appeal, Mr [RESPONDENT]. Mr [APPELLANT]'s trustee in bankruptcy ("the Trustee") was notified in the sense that Mr [APPELLANT] has assured me that he served a copy of the notice of motion upon the Trustee. The Trustee has not appeared. 4 Mr [APPELLANT] has said that he has no assets.

Accordingly, the Trustee will not in fact be getting in any assets between now and the hearing of the appeal which is, according to [NAME], fixed before a [ADDRESS] of this Court on 13 February 2002. 5 Mr [APPELLANT] points out that the proceeding between Mr [APPELLANT] and Mr [RESPONDENT] in the [ADDRESS] at Wagga Wagga (No 459 of 1992) commenced in 1992. Mr [APPELLANT] relies on a hearing which is fixed in January 2002 in that Court of an application by him for an order setting aside the judgment in that proceeding. He says that if there is not a stay of the sequestration order, he will not be able to pursue that application to set aside. Mr [NAME] points out, however, that this very consideration was before Conti J when he made the sequestration order on 21 September 2001. That seems to me to tell against the grant of a stay. 6 I am not persuaded that there should be a stay. Of course, Mr [APPELLANT] will be entitled to pursue the hearing of his appeal before the [ADDRESS] on 13 February next. If the [ADDRESS] should be persuaded to delay the hearing of the appeal and to stay the order of [APPELLANT] J in the meanwhile so as to allow Mr [APPELLANT] to pursue his application to set aside in the [ADDRESS] at Wagga Wagga, so be it. 7 Since I have given the above reasons, Mr [NAME] has drawn my attention to the fact that he has been informed by an officer in the Trustee's office, that notices in respect of assets have been issued by the Trustee. But Mr [APPELLANT] has told me that he has no assets and so I presume that there is no property in respect of which the notices will be able to have any effect. 8 I think, all things considered, it is best for me not to grant a stay. Mr [APPELLANT]'s notice of motion also seeks, by par (1), an order that [NAME] J's judgment "be set aside" and, by par (2), an order that "the sequestration order … be dismissed". The former is a question before the [ADDRESS] on the appeal. The second is probably intended to raise the same question. I will stand over the motion in those respects to the [ADDRESS]. Having failed on the point argued, Mr [APPELLANT] should pay the costs of the motion to date. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate: Dated: 2 January 2002

The appellant appeared in person by telephone. [NAME]: [RESPONDENT] of Hearing: 21 December 2001

Date of Judgment: 21 December 2001