Day v Gould, in the matter of Gould

[2002] FCA 936

FEDERAL COURT OF AUSTRALIA

Day v Gould, in the matter of Gould [2002] FCA 936

IN THE MATTER OF STEPHEN GOULD

JULIAN DAY & ANOR v STEPHEN GOULD

N7025 of 2002

MADGWICK J
16 JULY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7025 of 2002

IN THE MATTER OF STEPHEN GOULD

BETWEEN:

JULIAN DAY
FIRST APPLICANT

ALAN MANLY
SECOND APPLICANT

AND:

STEPHEN GOULD
RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

16 JULY 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The notice of motion is dismissed with 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	N7025 of 2002

IN THE MATTER OF STEPHEN GOULD

BETWEEN:

JULIAN DAY
FIRST APPLICANT

ALAN MANLY
SECOND APPLICANT

AND:

STEPHEN GOULD
RESPONDENT

JUDGE:	MADGWICK J
DATE:	16 JULY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. By his notice of motion the respondent bankrupt, Mr Gould, among other things, seeks an order that:

   “Aunder s 37(1) of the Bankruptcy Act 1996 [sic] suspend the Sequestration Order pending an application for a hearing of the Sequestration Order on the grounds of new evidence not placed before the Court in any matter relating to the Granting of the Sequestration Order on 07 Sep 2000.”

2. Section 37 of the Bankruptcy Act 1966 (Cth) is in the following terms:

   “(1)Subject to subsection (2) the Court may rescind, vary or discharge an order made by it and under this Act or may suspend the operation of such an order.

   (2)The Court does not have the power to rescind or discharge, or to suspend the operation of:

   (i)     a sequestration order ...”

3. It is perfectly clear that the Court has no power to grant that aspect of the relief sought and insofar as the application seeks that relief it will be dismissed with costs.

4. By notice of motion the respondent also asks that the Court “strike out” summonses to give evidence issued by the first applicant in the principal proceedings, on six people of whom the respondent is one.  There is no evidentiary material before me to suggest that the summonses are oppressive or have been improperly issued and no submission has been made which would persuade me that there is anything wrong with the summonses.  The summonses were issued after the Court received an affidavit indicating why they were being issued.

5. There is otherwise no basis for the application.  In consequence the entire notice of motion is dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             16 July 2002

First Applicant appeared in person.
Second Applicant appeared in person.
Respondent appeared in person.
Date of Hearing:	16 July 2002
Date of Judgment:	16 July 2002