Burns v AMP Finance Ltd

FEDERAL COURT OF AUSTRALIA

Burns v AMP Finance Limited (ACN 002 812 704) [2005] FCA 761

JOHN BURNS v AMP FINANCE LIMITED (ACN 002 812 704)

NSD 854 OF 2005

EMMETT J
31 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD854 OF 2005

BETWEEN:	JOHN BURNS APPELLANT
AND:	AMP FINANCE LIMITED (ACN 002 812 704) RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	31 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed.

2.the appellant pay the respondent’s costs of the application for a stay. 

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	NSD854 OF 2005

BETWEEN:	JOHN BURNS APPELLANT
AND:	AMP FINANCE LIMITED (ACN 002 812 704) RESPONDENT

JUDGE:	EMMETT J
DATE:	31 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 20 May 2005, Raphael FM made a sequestration order against the estate of John Burns. On the same day, his Honour granted a stay of the order. I do not think anything turns on that. Section 52(3) of the Bankruptcy Act 1966 (Cth) (‘the Act’) provides that the Court may, if it thinks fit, upon such terms and conditions as it thinks proper, stay all proceedings under sequestration order for a period not exceeding 21 days. It is not entirely clear to me at this stage whether the stay was granted pursuant to s 52(3), or otherwise.

2. The stay was granted up to, and including, 27 May 2005. On that day, the stay was extended to 12 noon, today. Earlier in the day I granted a stay pursuant to s 52(3) up to and including 5 pm today. Earlier today, the appellant filed a notice of appeal from the orders made by Raphael FM on 20 May 2005. He now moves for an order that the sequestration order be stayed until the disposition of the appeal. Putting aside the question of the Court’s power to grant the stay sought, I have concluded, for the reasons which I will now state, that no stay should be granted at this point. It is therefore unnecessary to enquire into the question of the Court’s power to grant a stay in these circumstances.

3. The ground upon which a stay was sought was that the appellant wishes to arrange for the refinancing of the debt upon which the sequestration order was based.  That debt is by way of suretyship, the appellant having given a guarantee in respect of the obligations of Dolroy Pty Limited (‘the Company’), to the petitioning creditor, AMP Finance Limited (‘the Creditor’).

4. Whether or not the appellant is able to refinance the debt, and perhaps apply for an annulment is not, in my view, a reason for staying a sequestration order. That is particularly so in the absence of any evidence as to the likely prospects of such a refinancing being possible. Alternatively, the appellant says that he should have…