Beames v Rigby

[2002] FCA 806

FEDERAL COURT OF AUSTRALIA

Beames v Rigby [2002] FCA 806

BANKRUPTCY – motion for a stay of sequestration order until the appeal against the sequestration order is heard – whether there is an arguable point on the proposed appeal – whether the balance of convenience favours the granting of a stay

Bankruptcy Act 1966 (Cth) ss 41(7) and 60(2)

Freeman v National Australia Bank Limited [2002] FCA 427 followed
Thomas v St George Bank Ltd [1999] FCA 166 followed

DOUGLAS MACLEOD BEAMES v GEOFFREY IAN RIGBY
Q 88 OF 2002

DRUMMOND J
BRISBANE
18 JUNE 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 88 OF 2002

BETWEEN:	DOUGLAS MACLEOD BEAMES APPLICANT
AND:	GEOFFREY IAN RIGBY RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	18 JUNE 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The notice of motion filed 11 June 2002 be dismissed.

2.The applicant pay the respondent’s costs of and incidental to the notice of motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 88 OF 2002

BETWEEN:	DOUGLAS MACLEOD BEAMES APPLICANT
AND:	GEOFFREY IAN RIGBY RESPONDENT

JUDGE:	DRUMMOND J
DATE:	18 JUNE 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant, Mr Beames, by notice of motion filed 11 June 2002 seeks the stay of a sequestration order made on 30 May 2002 by a Federal Magistrate.   I am satisfied that I have jurisdiction to grant the stay sought, which is the stay of proceedings under the sequestration order, until the determination of the appeal which Mr Beames has lodged.   See Freeman v National Australia Bank Limited [2002] FCA 427 at [3].

2. The considerations upon which the outcome of the motion depends are set out in that case at par 4, where Spender J says:

   “The relevant considerations in determining whether a stay of proceedings [under a sequestration order] should be granted are whether there is an arguable point on the proposed appeal and whether the balance of convenience favours the granting of a stay.”

3. The notice of appeal challenges, firstly, the Magistrate’s decision that the act of bankruptcy relied on by the petitioning creditor, Mr Rigby, was committed.  More specifically, there is a challenge to the Magistrate’s decision that the time for compliance with the bankruptcy notice had not been automatically extended pursuant to s 41(7) the Bankruptcy Act 1966 (Cth).

4. Another point agitated before the Magistrate in this regard was whether an express order extending the time for compliance with the bankruptcy notice had been made pursuant to s 41(6A) the Bankruptcy Act.  The Magistrate determined that issue against Mr Beames and that particular finding is not the subject of the proposed appeal.  It would follow that the time for compliance with the bankruptcy notice upon which the petition was founded was 21 days after its service on 15 December 2001 on Mr Beames.

5. I do not think that Mr Beames has any significant prospect…