Garrett v Gel Custodians Pty Ltd

Court of Appeal

New South Wales

Case Title:

Garrett v GEL Custodians Pty Ltd

Medium Neutral Citation:

[2012] NSWCA 197

Hearing Date(s):

15 June 2012

Decision Date:

15 June 2012

Jurisdiction:

Before:

Allsop P at [1], [16]
Macfarlan JA at [15]

Decision:

Application for leave to appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for leave to appeal - standing - order for possession obtained by respondent secured creditor - applicant for leave to appeal an undischarged bankrupt - lack of standing in applicant

Legislation Cited:

Bankruptcy Act 1966 (Cth)
Judiciary Act 1903 (Cth)

Cases Cited:

Samootin v Shea [2010] NSWCA 371

Texts Cited:

Category:

Principal judgment

Parties:

Malcolm James Garrett (Applicant)
GEL Custodians Pty Ltd (Respondent)

Representation

- Counsel:

In Person (Applicant/Respondent)
Ms T Amarasingham, Solicitor (Respondent/Applicant)

- Solicitors:

Norton Rose (Respondent/Applicant)

File number(s):

2012/60226

Decision Under Appeal

- Court / Tribunal:

- Before:

Davies J

- Date of Decision:

23 February 2012

- Citation:

- Court File Number(s)

2011/312352

Publication Restriction:

JUDGMENT

1. ALLSOP P: The matter before the Court is constituted by two applications. One is by Mr Garrett, who is the applicant on an application for leave to appeal from orders made by the Supreme Court on 23 February 2012. The other is by the respondent to that application, GEL Custodians Pty Ltd for the dismissal of the application for leave to appeal upon a number of rules of the Uniform Civil Procedure Rules, but in substance, relevantly, because of the fact that Mr Garrett has the status effected by the Bankruptcy Act 1966 (Cth) after a sequestration order made thereunder, that is, Mr Garrett is an undischarged bankrupt.

2. Mr Garrett's application for leave to appeal is supported by various arguments to the effect that he was denied a jury trial in the Possession List and various other constitutional impediments to the Court acting in the way that it did. Those submissions are contained at pp 9-15 of the White Book under the document titled Summary of Claimant's Argument.

3. The matters that Mr Garrett raises in his summary of argument and the draft notice of appeal, which is also in the White Book, raised constitutional issues on one view - reflected in paras 1 and 2 of the notice of appeal - which are in the following terms:

   "1. No court, established in accordance with Chapter III of the Act to Constitute the Commonwealth of Australia (63 & 64 Victoria. Chapter 12) [9th July 1990], has jurisdiction to deny anyone the legal procedure of Challenging the Jurisdiction of the Court when he or she is denied their legal…