Cottrell v Nicholls (Trustee) in the matter of Cottrell (Bankrupt)

[2004] FCA 247

FEDERAL COURT OF AUSTRALIA

Cottrell v Nicholls (Trustee) in the matter of Cottrell (Bankrupt) [2004] FCA 247

DAVID M COTTRELL v ALAN NICHOLLS (AS TRUSTEE IN THE ESTATE OF DAVID M COTTRELL A BANKRUPT)
N 7880 of 2000

ALLSOP J
16 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7880 of 2000

BETWEEN:	DAVID M COTTRELL APPLICANT
AND:	ALAN NICHOLLS (TRUSTEE) RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	16 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to Order 35 rule 7(2)(e) of the Federal Court Rules, Order 1 made by Conti J made on 19 September 2001 be vacated. 

2.In place of Order 1 made by Conti J on 19 September 2001 there be an order that the orders of Registrar Tesoriero made on 29 November 2000 be affirmed.

3.The costs of the respondent trustee of the notice of motion filed by Mr Cottrell on 10 December 2003 be taxed and be paid from the estate of David Mervyn Cottrell in accordance with the Bankruptcy Act 1966 (Cth).

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	N 7880 of 2000

BETWEEN:	DAVID M COTTRELL APPLICANT
AND:	ALAN NICHOLLS (TRUSTEE) RESPONDENT

JUDGE:	ALLSOP J
DATE:	16 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 27 February 2004, I made orders and published reasons in this matter and stood the matter over for further submissions on the appropriate form of orders.  Both parties have filed submissions.  Mr Cottrell’s submissions reassert his claim to having the orders of Registrar Tesoriero set aside.  I refuse to do that.  Mr Cottrell also seeks once again an order annulling the bankruptcy made by both Conti J and Registrar Tesoriero. I refuse to do that.

2. Ms Nash on behalf of the Trustee submitted that the orders that I foreshadowed should be made.  She also made submissions as to costs.  The costs were sought of the hearing before Conti J on 19 September 2001.  I do not propose to deal with orders for costs before Conti J.  I will however deal with orders for costs before me, in the application that is before me, which I dealt with in my reasons of 27 February 2004. 

   3The orders that I propose to make, having heard the parties are:

   1.Pursuant to Order 35 rule 7(2)(e) of the Federal Court Rules, Order 1 made by Conti J made on 19 September 2001 be vacated. 

   2.In place of Order 1 made by Conti J on 19 September 2001 there be an order that the orders of Registrar Tesoriero made on 29 November 2000 be affirmed.

   3.The costs of the respondent trustee of the notice of motion filed by Mr Cottrell on 10 December 2003 be taxed and be paid from the estate of David Mervyn Cottrell in accordance with the Bankruptcy Act 1966 (Cth).

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             16 March 2004

Written submissions were filed.
Date of Judgment:	16 March 2004