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

[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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CaseChat Overview and Summary

Collett v Codfern Pty Ltd (t/a Gregson & Weight) involved Stanley William Collett, the applicant, seeking a stay pending appeal against a decision of the District Court which refused a stay of a Magistrates Court order granting warrant for possession of land to Codfern Pty Ltd, trading as Gregson & Weight. The Court of Appeal was tasked with determining whether Collett had the right to appeal and whether a stay should be granted. The legal issues before the court were whether Collett, an undischarged bankrupt, could appeal the District Court's decision and whether the court should grant a stay pending that appeal. The court found that Collett's interest in the land vested in his trustee in bankruptcy under the Bankruptcy Act 1966, and since the trustee had declined to pursue the appeal, Collett's application was deemed incompetent. The court also found that Collett had not provided sufficient grounds to justify a stay. Therefore, the appeal was dismissed, the application for a stay was refused, and Collett was ordered to pay the costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established