Evans v Hi-Fert Pty Ltd

FEDERAL COURT OF AUSTRALIA

Evans v Hi-Fert Pty Ltd [2003] FCA 802

MARK CHARLTON EVANS v HI-FERT PTY LTD ACN 008 038 962

S 576 of 2003

SELWAY J
24 JULY 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 576 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MARK CHARLTON EVANS APPELLANT
AND:	HI-FERT PTY LTD ACN 008 038 962 RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	24 JULY 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant to pay the respondent petitioning creditor’s costs of and incidental to the appeal, to be assessed in accordance with the Federal Court Rules and paid in accordance with the Bankruptcy Act 1966 (Cth).

3.The Court declares that the costs of the trustee in respect of the appeal are to be treated as costs in the administration of the estate.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 576 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MARK CHARLTON EVANS APPELLANT
AND:	HI-FERT PTY LTD ACN 008 038 962 RESPONDENT

JUDGE:	SELWAY J
DATE:	24 JULY 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate given on 17 June 2003. The Honourable the Chief Justice has determined that the appeal should be heard by a single judge pursuant to s 25(1)(a) of the Federal Court of Australia Act 1976 (Cth).

2. The appellant also applies for a stay and for an expeditious hearing.  The reason for this is that his house and a portion of his property is to be auctioned by a secured creditor, the Commonwealth Bank of Australia, in the next day or so.  In response to that application the Court has brought the matter on expeditiously for an early hearing.

3. The appellant also seeks a stay.  The effect of a stay would appear to be primarily to prevent the Bank from enforcing its security.  The Bank has not been joined as a party and was only served some one hour before these proceedings commenced, and that at the instigation of the Court.  I am not be prepared to order a stay in these circumstances without having heard from the Bank, whatever the merits.

4. However, to avoid any prejudice to the appellant, it seemed to me the appropriate course was to proceed expeditiously to deal with the whole appeal, in the hope that if there were any prospects of success for him, that could be achieved today.

5. The appellant applied to the Federal Magistrate to review the decision of the Registrar to make a sequestration order and, second, to annul the sequestration order that had been made.  The Federal Magistrate dismissed the review application on the basis that it was out of time.  He then proceeded to hear the annulment application.

6. The background to the sequestration…