Cottrell v Wilcox

[2001] FCA 193

FEDERAL COURT OF AUSTRALIA

Cottrell v Wilcox [2001] FCA 193

Federal Court Rules (Cth) O 52, r 17(1)

Rozenbes v Kronhill (1956) 95 CLR 407 referred to
Meehan v Alfaro (1999) 93 FCR 201 referred to
International Alpaca Management Pty Ltd v Ensor [1999] FCA 72 (10 February 1999, unreported) referred to

DAVID MERVYN COTTRELL v JOHN ALFRED WILCOX
N 1476 of 2000

KATZ J
SYDNEY
7 MARCH 2001

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
JUDGE:	KATZ J
DATE OF ORDER:	7 MARCH 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appellant’s motion be dismissed.

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

JUDGE:	KATZ J
DATE:	7 MARCH 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I heard yesterday morning a motion seeking a stay of proceedings under a judgment, an appeal having been brought from that judgment.  The applicant on the motion (and the appellant on the appeal) was Mr David Mervyn Cottrell, who participated by telephone in the hearing of his motion.  Mr Cottrell was not legally represented.  I announced at the conclusion of the hearing of Mr Cottrell’s motion that I had decided not to grant the stay which he had sought and would give my reasons for that decision as soon as possible.  What follows are those reasons.

2. The background to Mr Cottrell’s motion is that on 29 November 2000, a Registrar of this Court made a sequestration order against Mr Cottrell’s estate on the petition of Mr John Alfred Wilcox, that petition being supported by another creditor of Mr Cottrell’s.  Mr Cottrell applied for review of that order, but, on 22 December 2000, Conti J affirmed that order.  Then, on 29 December 2000, Mr Cottrell filed in person both a notice of appeal from the judgment of Conti J and a notice of the present motion.  Subsequently, on 5 February 2001, Mr Cottrell filed in person a supplementary notice of appeal.

3. It is not in dispute that O 52, r 17(1) of the Federal Court Rules (Cth) confers on me the power to grant the relief sought by Mr Cottrell in his motion.  Further, it is plain that, in order to obtain the stay which he seeks, it is incumbent on Mr Cottrell to persuade me that at least one of his grounds of appeal is an arguable one.

4. The supplementary notice of appeal which Mr Cottrell filed on 5 February 2001 contained sixteen numbered grounds of appeal.  Before, however, dealing with any of those grounds of appeal, it is appropriate that I turn to the reasons for judgment of Conti J.

5. From those reasons, one discovers that Mr Wilcox’s creditor’s petition had been based on Mr Cottrell’s failure either to comply…