Australian Guarantee Corp Ltd v Collard, Graham - [1997] FCA 1094

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 7397 of 1997

BETWEEN:

AUSTRALIAN GUARANTEE CORPORATION LIMITED
APPLICANT

AND:

GRAHAM COLLARD
RESPONDENT

JUDGE:

TAMBERLIN J

DATE:

30 SEPTEMBER 1997

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(Ex-tempore Judgment)

In this matter a notice of motion was filed on 24 September 1997 seeking a review of the orders of Ryan JR made on 19 September 1997 pursuant to s 18AC(1) of the Federal Court of Australia Act1976 (Cth) and O 79 r 4 of the Federal Court Rules (“the Rules”). There were also a number of further orders sought. An application has been made for leave to amend the notice of motion to seek an additional order concerning the appointment of the trustee.

The order which is pressed before me today relates to an application to stay proceedings under the sequestration order of Ryan JR until determination of the review.

An application was made for adjournment of the proceedings today because the notice of motion had not allowed sufficient time in accordance with the Rules. I am not disposed to grant an adjournment as I have heard full argument on the matter from legal representatives and I therefore make an order abridging the time for filing, hearing and serving the notice of motion.

So far as the application for a stay pending review is concerned the relevant principles were considered by Pincus J in relation to provisions under earlier legislation in Evans v Heather Thiedeke Group Pty Ltd (1990) 95 ALR 424 and in particular in the passages set out at 425. In that judgment his Honour indicated that there was support for the view that when there is a bona fide appeal challenging the existence of a debt, a stay of the sequestration order should fairly readily be granted.

His Honour, in the course of his judgment, referred to provisions of the Bankruptcy Act 1966 (Cth), namely s 52(3), and also to O 52 r 17 of the Rules. The latter rule empowered the court in relation to appeals to stay further proceedings under the judgment appealed from. In contrast, s 52(3) of the Bankruptcy Act empowers the court to stay all proceedings under a sequestration order for a period not exceeding 21 days.

There is no corresponding provision for an unlimited stay under the principles relating to review of decisions. The case advanced for the applicant on the notice of motion is that the Court should be taken to have inherent jurisdiction, by which I understand implied necessary jurisdiction, which attaches to the Court to enable it to make all orders and do all things necessary to performing its function as a superior court. Alternatively, it was suggested in the course of argument that the provisions of s 23 of the Federal Court Act would suffice to give it power to make an order staying proceedings in a case where there is a bona fide appeal instituted. Section 23 of the Federal Court Act, of course, provides that:

“The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] FCA 1094
Decision Date: 30 SEPTEMBER 1997

CaseChat Overview and Summary

The Federal Court of Australia, specifically the Victoria District Registry, dealt with a motion filed by Australian Guarantee Corporation Limited against Graham Collard. The applicant sought a review of orders made by Ryan JR on 19 September 1997, under section 18AC(1) of the Federal Court of Australia Act 1976 (Cth) and Order 79 Rule 4 of the Federal Court Rules. The primary issue was whether the court had the authority to stay proceedings under the sequestration order until the review was determined, and whether there was a bona fide appeal challenging the existence of a debt. The applicant argued that the court should exercise its inherent jurisdiction to grant the stay, or alternatively, that section 23 of the Federal Court Act provided the necessary power.

The court examined the principles regarding stays in bankruptcy proceedings, drawing on earlier case law, particularly Evans v Heather Thiedeke Group Pty Ltd (1990) 95 ALR 424. Pincus J had indicated that a stay should be granted when there is a bona fide appeal challenging the existence of a debt. The court considered whether the self-executing order made by Judge Campbell of the County Court of Victoria on 10 October 1995 could be considered a final judgment upon which execution had not been stayed under section 40(1)(g) of the Bankruptcy Act. The court concluded that there was a reasonably arguable case on this point. Given the demonstration of a bona fide appeal on reasonably arguable grounds, the court deemed it appropriate to grant the stay. Additionally, the court granted leave for the notice of motion to be amended to seek a declaration regarding the appointment of the Official Trustee in Bankruptcy.

The court ruled in favor of the applicant, granting the stay of proceedings under the sequestration order until the determination of the review. The court also granted leave for the notice of motion to be amended to seek a declaration concerning the appointment of the trustee. The respondent was awarded the costs of the application due to having substantially succeeded.

Orders