George v Fletcher (Trustee)

Case [2011] FCA 952

FEDERAL COURT OF AUSTRALIA

George v Fletcher (Trustee) [2011] FCA 952

Citation: George v Fletcher (Trustee) [2011] FCA 952
Appeal from: Fletcher v George & Ors [2011] FMCA 553
Parties: LAUREN KAY GEORGE v WILLIAM JOHN FLETCHER AS TRUSTEE FOR THE BANKRUPT ESTATE OF LAUREN KAY GEORGE, DR PETER IRONSIDE PTY LTD ACN 008 126 387, DR PETER DOUGLAS IRONSIDE, NATIONAL AUSTRALIA BANK LIMITED ABN 12 004 044 937 and SUSAN WILSON
File number: QUD 192 of 2011
Judge: LOGAN J
Date of judgment: 10 August 2011
Catchwords: PRACTICE AND PROCEDURE – application for stay of judgment under appeal – whether appellant has demonstrated a reason to exercise the discretion in favour of a stay – where appellant had raised an arguable case about denial of procedural fairness – where if stay was not granted appellant may suffer loss – where appeal could not be heard for six months – where trustee would incur expense if stay not granted – stay granted
Legislation: Bankruptcy Act 1996 (Cth) s116
Federal Court Rules 2011 (Cth) r 36.08
Cases cited: Fletcher v George & Ors [2011] FMCA 553 cited
George v Fletcher (Trustee) [2010] FCAFC 53 cited
Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 followed
Date of hearing: 10 August 2011
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 23
Counsel for the Appellant: Appellant appeared in person
Solicitor for the First Respondent: Holman Webb Lawyers
Counsel for the Second and Third Respondents: Mr R Galloway
Solicitor for the Second and Third Respondents: Bell Dixon Butler Lawyers
Solicitor for the Fourth Respondent: Thynne & Macartney
Counsel for the Fifth Respondent: Fifth Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 192 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

LAUREN KAY GEORGE
Appellant
AND:

WILLIAM JOHN FLETCHER AS TRUSTEE FOR THE BANKRUPT ESTATE OF LAUREN KAY GEORGE
First Respondent

DR PETER IRONSIDE PTY LTD ACN 008 126 387
Second Respondent

DR PETER DOUGLAS IRONSIDE
Third Respondent

NATIONAL AUSTRALIA BANK LIMITED ABN 12 004 044 937
Fourth Respondent

SUSAN WILSON
Fifth Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

10 AUGUST 2011

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.Save in respect of the registered horse float, registration number 938QMZ VIN 6T9T27V97603EZ050, the declaration made by paragraph 4 of the orders of the Federal Magistrates Court of 27 July 2011 is stayed until the hearing and determination of the appeal or further earlier order.

2.In amplification of that stay, the first respondent is not, pending the hearing and determination of the appeal or further earlier order, to dispose of any of the chattels listed in the auction catalogue, which is exhibit 2, save for the dual-cab Mitsubishi Triton utility, registration number 801GUO, being lot 1 in that catalogue, and the horse float, being lot 3 in that catalogue.

3.The costs of today are reserved.

4.The application for a stay is otherwise adjourned to 10.15am on 19 August…

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AGLC
George v Fletcher (Trustee) [2011] FCA 952
Case
[2011] FCA 952
Decision Date

CaseChat Overview and Summary

George sought a stay of judgment against Fletcher (Trustee) in an appeal against a decision of the Federal Magistrates Court. The Court was required to determine whether the appellant had demonstrated a reason for exercising its discretion in favour of a stay of judgment. The appellant argued that the Federal Magistrates Court had denied procedural fairness in the sale of certain chattels. The Court considered whether the appellant had raised an arguable case and whether, if the stay was not granted, the appellant may suffer a loss. The Court also took into account that the appeal would not be heard for six months, and the trustee would incur expense if the stay was not granted.

The Court found that the appellant had demonstrated a reason to exercise the discretion in favour of a stay. The appellant had raised an arguable case about the denial of procedural fairness, and the Court was satisfied that if the stay was not granted, the appellant may suffer a loss. The Court also considered the length of time before the appeal could be heard and the expense that would be incurred by the trustee if the stay was not granted. The Court was satisfied that the appellant had met the threshold for a stay of judgment.

The Court granted the application for a stay of judgment, save in respect of the registered horse float. The Court directed that the first respondent is not, pending the hearing and determination of the appeal, to dispose of any of the chattels listed in the auction catalogue, save for the dual-cab Mitsubishi Triton utility and the horse float. The Court also directed that the appellant notify the District Registrar forthwith of her residential address and that any party has leave to serve documents upon the appellant electronically to the email address shown on the notice of appeal. The registrar was to furnish to the parties by prepaid letter post a copy of the orders made that day.

Orders

Orders of the court

1. Save in respect of the registered horse float, registration number 938QMZ VIN 6T9T27V97603EZ050, the declaration made by paragraph 4 of the orders of the Federal Magistrates Court of 27 July 2011 is stayed until the hearing and determination of the appeal or further earlier order.

2. In amplification of that stay, the first respondent is not, pending the hearing and determination of the appeal or further earlier order, to dispose of any of the chattels listed in the auction catalogue, which is exhibit 2, save for the dual-cab Mitsubishi Triton utility, registration number 801GUO, being lot 1 in that catalogue, and the horse float, being lot 3 in that catalogue.

3. The costs of today are reserved.

4. The application for a stay is otherwise adjourned to 10.15am on 19 August 2011.

5. The appellant file and serve such supplementary written submissions, of not more than five pages, together with such further affidavits, if any, upon which she proposes to rely by 4.00pm on 15 August 2011.

6. The respondents are to file and serve such material, if any, including an outline of submissions on which they propose to rely by 4.00pm on 18 August 2011.

The Court directs that:

1. The appellant notify the District Registrar forthwith of her residential address.

2. Upon notification, that residential address stand as the appellant’s address for service until further order.

3. Upon the receipt of that residential address the District Registrar is to notify all other parties to the appeal of that address.

4. Any party has leave to serve documents upon the appellant electronically to the email address shown on the notice of appeal filed 29 July 2011.

5. The proven dispatch of those documents by email will, until further order, be good service on the appellant in lieu of personal service at the residential address notified to the District Registrar.

6. The registrar to furnish to the parties by prepaid letter post a copy of the orders made today.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

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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