Collett v Codfern Pty Ltd (t/a Gregson & Weight)

[2001] QCA 198

[2001] QCA 198

COURT OF APPEAL

McMURDO P

Appeal No 4489 of 2001

STANLEY WILLIAM COLLETT                   Applicant

and

CODFERN PTY LTD
(trading as GREGSON & WEIGHT)             Respondent

BRISBANE

..DATE 24/05/2001

JUDGMENT

HER HONOUR: The applicant has filed an application for leave to appeal from a decision of a District Court Judge effectively refusing a stay pending appeal to the District Court from an order of the Magistrates Court granting the respondent warrant for possession of land in which the applicant claims an interest. The applicant needs leave to appeal under s.118(3) District Court Act 1967.

The applicant is an undischarged bankrupt.  Any interest he has in the land vests in the trustee in bankruptcy pursuant to s.58 Bankruptcy Act (Cth) 1966.  The applicant informs me that he has served these proceedings on his trustee in bankruptcy but has heard nothing from him.  The parties agree that the trustee in bankruptcy declined to further this action in the District Court when served with the material on that occasion.  It does not seem that the trustee in bankruptcy is interested in pursuing this application for leave to appeal.

The applicant claims that he has a right to pursue this application under s.60(4) Bankruptcy Act 1966 but that section plainly relates only to actions commenced by the bankrupt before bankruptcy and only in respect of personal injuries or wrongs and has no application to matters of this kind. For those reasons, it seems to me, this application for leave to appeal is incompetent and must be struck out and the stay refused.

In any case, it must be said on the material before me that the applicant has failed to establish any reasons which would justify the granting of a stay.

The order is the application for a stay is refused, the application for leave to appeal is struck out.

...

HER HONOUR:  The applicant is to pay the costs of and incidental to this application to be assessed.

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