Bryant J.R. v Commonwealth Bank of Australia

[1995] FCA 476

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 223 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:     JOSEPH RICHARD BRYANT

Applicant

AND:     COMMONWEALTH BANK OF AUSTRALIA

Respondent

CORAM: Burchett J.
PLACE: Sydney
DATE : 27 June 1995

REASONS FOR JUDGMENT

BURCHETT J.:

In this matter, Mr Bryant sought a stay of the sequestration order.  A stay was granted by Lockhart J. at the time that he made the order.  I was asked to continue that stay, which was for an initial period of, I think, three weeks. I took the view, at that stage, that the close pendency of a hearing in the Full Court of an appeal from a decision of Einfeld J., in one of the series of cases with which Mr Bryant has been concerned, was in all the circumstances a sufficient reason for continuing the stay for a short time, and I continued it.

That appeal has in the event turned out to be unsuccessful, and Mr Bryant now asks me to continue the stay further, this time until the hearing of an appeal which he has brought against the decision of Lockhart J. to make the sequestration order itself.  There is also pending an appeal in the Court of Appeal of the Supreme Court of New South Wales.  There is no indication when that appeal, which is from Levine J., would be heard.

Mr Bryant referred me, in oral argument, to the possibility that, if a stay is refused, he will ultimately lose the ability to maintain the appeal against the decision of Levine J. in the Supreme Court, and also the opportunity to pursue an application for special leave to appeal to the High Court, and any appeal which might otherwise be open to him should the High Court grant special leave.  Of course, the pursuit of these appeals, and particularly the pursuit of the appeal against the decision of Levine J., is a matter which in itself is likely to cost money, and consequently, the prejudice is not all one way when one considers the effect of a grant or refusal of a stay on the prosecution of such an appeal.  At the same time, if the trustee considers there are good grounds to maintain an appeal which affects the entitlement of Mr Bryant to property, it will remain open to the trustee to take steps. 

Another matter which Mr Bryant relies on is the effect of a sequestration order, at any rate if it be not stayed, on his status as an alderman of Blacktown City Council.  That, of course, is a matter to be taken into account.  Mr Bryant further submits that the Commonwealth Bank of Australia, the respondent to his application, has not been vigorous in pursuing any remedy which it may have under its security documents.

However, Lockhart J. has held that a case for a sequestration order was made out, and the bank is, of course, entitled in law to rely on what rights it has in respect of that order.  As I made clear to Mr Bryant in the course of his oral argument, a failure by the Court to grant him a continuation of the stay he has previously obtained does not prevent him maintaining his appeal against the sequestration order.  In all the circumstances, it does not seem proper to me to continue the stay any further, and it will accordingly expire at the date and time that I last fixed, which was, I think, 12 noon today.

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

Associate:

Date: 6 July 1995

Applicant appeared in person.

Solicitor for the Respondent:        Mr D.P. Courtenay of Shaw McDonald

Date of hearing:                 27 June 1995