Bryant, J.R. v Commonwealth Bank of Australia

[1995] FCA 585

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )                 
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 223 of 1995     
GENERAL DIVISION                 )

BETWEEN:               JOSEPH RICHARD BRYANT
  Applicant

AND:                   COMMONWEALTH BANK
  OF AUSTRALIA
  Respondent

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
DATED:       7 JULY 1995

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The hearing of the appeal be expedited.

1. The notice of motion be dismissed in respect of the application to stay the sequestration order.

1. The applicant pay the costs of the respondent of this application.

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

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 223 OF 1995 GENERAL DIVISION                  )

BETWEEN:          JOSEPH RICHARD BRYANT
  Applicant

AND:              COMMONWEALTH BANK
  OF AUSTRALIA
  Respondent

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
DATED:       7 JULY 1995

REASONS FOR JUDGMENT

The matter before me is a Notice of Motion by Joseph Richard Bryant, seeking two orders.  The first is that the hearing of the appeal be expedited.  There is no objection to this order being made by the respondent, the Commonwealth Bank of Australia.  Accordingly, I order that the hearing of the appeal be expedited.

I am satisfied that there are grounds made out in the affidavit of Mr Bryant of 3 July 1995, together with the material on which he has addressed me and the matters to which he has drawn my attention to ground an expedition of the hearing of this appeal.

The second order which is sought in the notice of motion which was filed on 4 July 1995 is that all proceedings under the sequestration order made on 30 March 1995, and stayed until 19 April 1995 by Lockhart J and further stayed until 27 June 1985 by Burchett J, against the estate of Joseph Richard Bryant be stayed pending the determination of the appeal.

The history of this matter is that the sequestration order was made on 30 March 1995 by Lockhart J.  It was stayed by his Honour until 19 April 1995.  Subsequently, Burchett J further stayed the sequestration order until 27 June 1995.  At that time his Honour delivered reasons for judgment as to why he was not prepared to stay further the sequestration order.

There is pending from the decision of Lockhart J, an appeal to the full Federal Court.

The application which was before Burchett J was in almost identical terms to the application which was before me, except that in the application of 10 April 1995 there was no order sought for an expedition of the hearing of the appeal.

I have listened to the submissions made by both parties; particularly those of Mr Bryant, and I am not satisfied that grounds have been made out which would justify departure from the approach taken by Burchett J in this matter.  Burchett J did point out to Mr Bryant that a failure by the court to grant him a continuation of his stay does not prevent him from maintaining his appeal against the sequestration order.

In the matter before me I think that the fact that the hearing of the appeal will be expedited to some extent is a further relevant matter to take into account.

Accordingly, I grant the notice of motion in relation to the expedition of the hearing of the appeal but I dismiss it in respect of the application to stay the sequestration order.

In relation to the question of costs, the matter has been argued by both sides.  I think that the respondent Bank has been substantially successful and, accordingly, I order that the applicant, Joseph Richard Bryant, pay the costs of the respondent of this application.

I certify that this and
the preceding two (2)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.

Associate:

Date:  7 July 1995  

For Applicant:                 Mr J R Bryant appeared in person   

Solicitor for Respondent:        Mr D P Courtenay of Shaw McDonald

Date of Hearing:               7 July 1995  

Date Judgment Delivered:              7 July 1995