Cottrell v Wilcox

Case [2001] FCA 866

FEDERAL COURT OF AUSTRALIA

Cottrell v Wilcox [2001] FCA 866

Federal Court of Australia Act 1976 (Cth) ss 35A(6), 51(1), 52
Bankruptcy Act 1966 (Cth) s 52(3)
Maintenance, Champerty and Barratry Abolition Act 1993 (NSW) s 6
Federal Court Rules O 20 r 2, 18, 38
Bankruptcy Rules, s 19

Rozenbes v Kronhill (1956) 95 CLR 407 cited
Martin v Commonwealth Bank [2001] FCA 87 applied
Trendtex Trading Corporation v Credit Suisse [1982] AC 679 applied
Martell v Consett Iron Co Ltd [1955] Ch 363 cited

DAVID MERVYN COTTRELL v JOHN ALFRED WILCOX
N 1476 OF 2000

SUNDBERG, EMMETT and FINKELSTEIN JJ
9 JULY 2001
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1476 OF 2000

BETWEEN:

DAVID MERVYN COTTRELL
APPELLANT

AND:

JOHN ALFRED WILCOX
RESPONDENT

JUDGES:

SUNDBERG, EMMETT and FINKELSTEIN JJ

DATE OF ORDER:

17 MAY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The notice of appeal be amended to add a further ground of appeal, namely

“18.That the learned judge failed to review the Registrar’s decision of 29 November 2000 in the manner required by s 35A(6) of the Federal Court of Australia Act.”

2.The respondent’s motion notice of which was filed on 16 March 2001 be dismissed.

3.The appeal be dismissed.

4.        The orders made by the primary judge be set aside.

5.The matter be remitted to the primary judge for further consideration in accordance with s 35A(6) of the Federal Court of Australia Act on the basis that there is no notice of opposition to the petition.

6.        There be no order as to costs.

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 1476 OF 2000

BETWEEN:

DAVID MERVYN COTTRELL
APPELLANT

AND:

JOHN ALFRED WILCOX
RESPONDENT

JUDGES:

SUNDBERG, EMMETT and FINKELSTEIN JJ

DATE:

9 JULY 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT

Background

  1. On 29 November 2000 a sequestration order was made against the appellant’s estate on the petition of the respondent.  The order was made by a Registrar of the Court.  The act of bankruptcy that founded the order was non‑compliance with a bankruptcy notice requiring payment of $36,679.42, being the amount of a judgment obtained by the respondent against the appellant in the Wagga Wagga Local Court for moneys lent together with interest.  The appellant did not seek to establish a counterclaim or cross claim, and he did not apply to set aside the bankruptcy notice prior to the making of the sequestration order.  On 20 December 2000 the appellant filed a notice of motion by which he sought an order that the Registrar’s decision be reviewed and the sequestration order set aside.  The matter came before a judge of the Court as a matter of urgency, for reasons that will be noted later.  It was heard on 22 December.  As a result of a physical disability that prevented him appearing in Court in…

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AGLC
Cottrell v Wilcox [2001] FCA 866
Case
[2001] FCA 866
Decision Date

CaseChat Overview and Summary

The case of Cottrell v Wilcox involves an appeal against the decision of the primary judge. The appellant, Cottrell, sought to appeal the decision of the primary judge, which was made on 16 March 2001. The primary judge dismissed the respondent’s motion notice, which was filed on 16 March 2001. The appellant sought to appeal the decision of the primary judge on various grounds, including that the learned judge failed to review the Registrar’s decision of 29 November 2000 in the manner required by section 35A(6) of the Federal Court of Australia Act.

The legal issues that the court was required to decide included whether the notice of appeal was sufficient, whether the primary judge’s decision was correct, and whether the orders made by the primary judge should be set aside. The court also had to determine whether the matter should be remitted to the primary judge for further consideration.

In its decision, the court held that the notice of appeal should be amended to add a further ground of appeal. The court also held that the respondent’s motion notice of which was filed on 16 March 2001 be dismissed, and that the appeal be dismissed. The orders made by the primary judge were set aside, and the matter was remitted to the primary judge for further consideration in accordance with section 35A(6) of the Federal Court of Australia Act. The court found that there was no notice of opposition to the petition. The court made no order as to costs.

In summary, the court found that the appellant’s notice of appeal was insufficient, and that the primary judge’s decision was correct. The court set aside the orders made by the primary judge and remitted the matter to the primary judge for further consideration. The court made no order as to costs.

Orders

Orders of the court

1. The notice of appeal be amended to add a further ground of appeal, namely

“18. That the learned judge failed to review the Registrar’s decision of 29 November 2000 in the manner required by s 35A(6) of the Federal Court of Australia Act.”

2. The respondent’s motion notice of which was filed on 16 March 2001 be dismissed.

3. The appeal be dismissed.

4. The orders made by the primary judge be set aside.

5. The matter be remitted to the primary judge for further consideration in accordance with s 35A(6) of the Federal Court of Australia Act on the basis that there is no notice of opposition to the petition.

6. There be no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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