Cottrell v Wilcox

[2001] FCA 1890

FEDERAL COURT OF AUSTRALIA

Cottrell v Wilcox [2001] FCA 1890

DAVID MERVYN COTTRELL v JOHN ALFRED WILCOX

N 1415 OF 2001

LINDGREN J
21 DECEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1415 OF 2001

BETWEEN:	DAVID MERVYN COTTRELL APPELLANT
AND:	JOHN ALFRED WILCOX RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	21 DECEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The motion brought by notice of motion filed on 11 October 2001 in so far as it seeks the relief in par (3) be dismissed.

2.The motion brought by notice of motion filed on 11 October 2001 in so far as it seeks the relief in pars (1) and (2) be stood over to the Full Court on 13 February 2002.

3.The appellant pay the respondent’s costs of the motion to date.

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 1415 OF 2001

BETWEEN:	DAVID MERVYN COTTRELL APPELLANT
AND:	JOHN ALFRED WILCOX RESPONDENT

JUDGE:	LINDGREN J
DATE:	21 DECEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this proceeding, David Mervyn Cottrell (“Mr Cottrell”) has filed a notice of appeal from a judgment of Conti J given on 21 September 2001 in proceeding N 7880 of 2000.  On that date, his Honour made a sequestration order against Mr Cottrell’s estate.  I treat Mr Cottrell’s application for a stay as made to a Judge under O 52 r 17 of the Federal Court Rules.

2. Apparently, the dispute between the parties has had a long history.  John Alfred Wilcox (“Mr Wilcox”) was the petitioning creditor.  The order made by his Honour was made pursuant to a remittal to him by a Full Court of this Court on 9 July 2001.

3. Because of the state of his health and the distance at which he resides from the Court, Mr Cottrell has been permitted to appear on the hearing of his motion this morning by telephone.  Mr White, solicitor, has appeared for the respondent to the appeal, Mr Wilcox.  Mr Cottrell’s trustee in bankruptcy (“the Trustee”) was notified in the sense that Mr Cottrell has assured me that he served a copy of the notice of motion upon the Trustee.  The Trustee has not appeared. 

4. Mr Cottrell has said that he has no assets.  Accordingly, the Trustee will not in fact be getting in any assets between now and the hearing of the appeal which is, according to Mr White, fixed before a Full Court of this Court on 13 February 2002.

5. Mr White points out that the proceeding between Mr Cottrell and Mr Wilcox in the Local Court at Wagga Wagga (No 459 of 1992) commenced in 1992.  Mr Cottrell relies on a hearing which is fixed in January 2002 in that Court of an application by him for an order setting aside the judgment in that proceeding.  He says that if there is not a stay of the sequestration order, he will not be able to pursue that application to set aside.  Mr White points out, however, that this very consideration was before Conti J when he made the sequestration order on 21 September 2001.  That seems to me to tell against the grant of a stay.

6. I am not persuaded that there should be a stay.  Of course, Mr Cottrell will be entitled to pursue the hearing of his appeal before the Full Court on 13 February next.  If the Full Court should be persuaded to delay the hearing of the appeal and to stay the order of Conti J in the meanwhile so as to allow Mr Cottrell to pursue his application to set aside in the Local Court at Wagga Wagga, so be it.

7. Since I have given the above reasons, Mr White has drawn my attention to the fact that he has been informed by an officer in the Trustee’s office, that notices in respect of assets have been issued by the Trustee.  But Mr Cottrell has told me that he has no assets and so I presume that there is no property in respect of which the notices will be able to have any effect. 

8. I think, all things considered, it is best for me not to grant a stay.  Mr Cottrell’s notice of motion also seeks, by par (1), an order that Conti J’s judgment “be set aside” and, by par (2), an order that “the sequestration order … be dismissed”.  The former is a question before the Full Court on the appeal.  The second is probably intended to raise the same question.  I will stand over the motion in those respects to the Full Court.  Having failed on the point argued, Mr Cottrell should pay the costs of the motion to date.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             2 January 2002

The appellant appeared in person by telephone.

Solicitor for the Respondent:	Mr J M White of Kemp Strang
Date of Hearing:	21 December 2001
Date of Judgment:	21 December 2001