B Pty Ltd v Sutton (No.2)

[2020] FCCA 3156

FEDERAL CIRCUIT COURT OF AUSTRALIA

B Pty Ltd v Sutton (No.2) [2020] FCCA 3156

File number(s):

SYG 73 of 2020

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

24 November 2020

Catchwords:

BANKRUPTCY – PRACTICE AND PROCEDURE – Application for an order under s.52(3) of the Bankruptcy Act 1966 (Cth) that proceedings under sequestration order be stayed pending appeal – whether arguable prospects of succeeding in setting aside sequestration order on appeal – whether balance of convenience favours making of order – application dismissed.

Legislation:

Bankruptcy Act 1966 (Cth), s.52(3)
Federal Circuit Court Rules 2001 (Cth), r.2.08B(1)(b)

Cases cited:

B Pty Ltd v Sutton [2020] FCCA 3068

Coshott v Prentice [2013] FCA 1085

Endresz v Australian Securities and Investments Commission [2014] FCA 1139

Endresz v Australian Securities and Investments Commission (No 2) [2015] FCAFC 33

Singh v Owners Strata Plan No. 11723 [2012] FCA 538

Number of paragraphs:

15

Date of hearing:

18 November 2020

Place:

Sydney

Counsel for the Applicant:

Mr C Freeman, by telephone

Solicitor for the Applicant:

Dentons

Counsel for the Respondent:

Mr G Bigmore QC, by telephone

Solicitor for the Respondent:

Christopher Dale

Supporting Creditor:

The Supporting Creditor did not appear

ORDERS

SYG 73 of 2020

BETWEEN:

B PTY LTD

Applicant

AND:

MR SUTTON
Respondent

C LTD
Supporting Creditor

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	19 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The respondent’s application for an order under s.52(3) of the Bankruptcy Act 1966 (Cth) that proceedings under the sequestration order made on 13 November 2020 continue to be stayed after 19 November 2020 is dismissed.

2.Subject to order 3, the respondent pay the applicant’s costs of the application for a stay, such costs to be paid out of the respondent’s bankrupt estate.

3.The applicant have liberty to apply for any variation to vary order 2.

4.Pursuant to r.2.08B(1)(b) of the Federal Circuit Court Rules 2001 (Cth) no person other than the parties and their legal representatives, or the trustees in Bankruptcy, Mr J and Mr K, may have access to the documents filed in the proceeding without the prior leave of the Court.

IT IS NOTED that publication of this judgment under the pseudonym B Pty Ltd v Sutton (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

1. On 13 November 2020 I pronounced orders that included an order that the estate of the respondent be sequestrated.[1]

   [1] B Pty Ltd v Sutton [2020] FCCA 3068

2. Immediately after I pronounced my orders counsel for the respondent applied for an order under s.52(3) of the Bankruptcy Act 1966 (Cth) (Act) that all proceedings under the sequestration order be stayed for 21 days. After some discussion, I granted a stay up to and including 18 November 2020, and set down for hearing at 4.15 pm on 18 November 2020 any application the respondent intended to make on that day for an extension of the stay.

3. At 4.15 pm on 18 November 2020 I heard the…