Bagshaw v Scott

[2002] FCAFC 362

FEDERAL COURT OF AUSTRALIA

Bagshaw v Scott [2002] FCAFC 362

BANKRUPTCY – Appeal by bankrupts concerning the decision of the primary judge that property which vested in the bankrupts’ trustees was charged to secure borrowing made by bankrupts – Appeal dismissed as incompetent under O 52 r 18 Federal Court Rules.

Bankruptcy Act 1966 (Cth) ss 5(1), 58(1), 58(2), 149, 149B
Federal Court Rules O 52 rr14(2), 18

McMahon v Livingstone [2001] NSWSC 55 referred to
Cummings v Claremont Petroleum NL (1996) 185 CLR 124 discussed and applied
Boaler v Power [1910] 2 KB 229 referred to and discussed
W R Henry & Son v Hodge [1963] VR 111 referred to
Motion v Moojen (1872) LR 14 Eq 202 referred to
Rochfort v Battersby (1849) 2 HLC 388; 9 ER 1139 referred to
Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 referred to
McCallum v Commissioner of Taxation (1997) 75 FCR 458 at 474 discussed
Guirguis v Guirguis (1997) 137 FLR 130 discussed

LEITH GORDON BAGSHAW & ANOR v JOHN JOSEPH SCOTT & ORS
N 244 of 2002

MANSFIELD, CONTI & ALLSOP JJ
6 DECEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 244 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

LEITH GORDON BAGSHAW & JUDITH HAMPTON BAGSHAW
APPELLANTS

AND:

JOHN JOSEPH SCOTT
FIRST RESPONDENT

PHILLIP GREGORY JEFFERSON & JAY ARSCOTT STEVENSON AS TRUSTEES OF THE BANKRUPT ESTATE OF LEITH GORDON BAGSHAW
SECOND RESPONDENTS

JUDGE:

MANSFIELD, CONTI & ALLSOP JJ

DATE OF ORDER:

6 DECEMBER 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal of Leith Gordon Bagshaw and Judith Hampton Bagshaw be dismissed as incompetent.

2.The appellants pay the costs of the respondent John Joseph Scott.

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 244 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

LEITH GORDON BAGSHAW & JUDITH HAMPTON BAGSHAW
APPELLANTS

AND:

JOHN JOSEPH SCOTT
FIRST RESPONDENT

PHILLIP GREGORY JEFFERSON & JAY ARSCOTT STEVENSON AS TRUSTEES OF THE BANKRUPT ESTATE OF LEITH GORDON BAGSHAW
SECOND RESPONDENTS

JUDGE:	MANSFIELD, CONTI & ALLSOP JJ
DATE:	6 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. Before the Court are an amended notice of appeal filed by Leith Gordon Bagshaw and his wife, Judith Hampton Bagshaw, and two notices of motion dated 25 June 2002 and 21 August 2002, filed on 2 July 2002 and 21 August 2002, respectively, by John Joseph Scott, a respondent to the amended notice of appeal.  The motions of Mr Scott seek to have the appeal dismissed as incompetent under O 52 r 18 of the Federal Court rules.  Mr Scott has sometimes appeared on process as the first respondent and sometimes as the second respondent.  To avoid confusion we will refer to him as Mr Scott.  The other respondents to the…