George v Fletcher (Trustee) (No 2) - [2011] FCA 1033

FEDERAL COURT OF AUSTRALIA
George v Fletcher (Trustee) (No 2) [2011] FCA 1033

Citation: George v Fletcher (Trustee) (No 2) [2011] FCA 1033

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: 19 August 2011

Catchwords: PRACTICE AND PROCEDURE – application for stay of judgment under appeal – where appellant had not demonstrated a reason to exercise the discretion in favour of a stay – stay not granted

Cases cited: George v Fletcher (Trustee) [2011] FCA 952 cited

Date of hearing: 19 August 2011

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 9

Counsel for the Appellant: The Appellant appeared in person

Counsel for the First Respondent: Mr CD Coulsen

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

Counsel for the Fourth Respondent: Ms S McNeil

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:

19 AUGUST 2011

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The third paragraph of the notice of motion filed on 29 July 2011 is struck out.
2.Save to the extent of the stay granted by the orders of 10 August 2011 the application made by notice of motion filed on 29 July 2011 is dismissed.
3.The costs of each of the respondents in respect of that application be those respective respondents’ costs in the appeal in any event.
4.The interlocutory application filed by the second and third respondents on 12 August 2011 is adjourned to a date to be fixed.
5.Liberty to apply to the second and third respondents to restore their application to the list on seven (7) days notice.

6.Costs in respect of the application by the second and third respondents are reserved.

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FCA 1033
Decision Date: 19 August 2011

CaseChat Overview and Summary

In the matter of George v Fletcher (Trustee) (No 2), the Federal Court was called upon to decide an application for a stay of judgment pending the outcome of an appeal. The appellant, George, sought a stay of a judgment against them, which was rendered in a previous proceeding. The respondents to this application were the trustee and others involved in the original dispute.

The legal issue before the court was whether the appellant had demonstrated sufficient grounds to exercise the court's discretion in favour of granting a stay. The court had to assess the merits of the appeal and the potential prejudice to the parties if a stay was not granted. Additionally, the court had to consider the balance of convenience and the public interest in the matter.

In delivering the judgment, the court found that the appellant had not shown compelling reasons to warrant a stay of the judgment. The court noted that the appellant had not demonstrated a strong prospect of success on the appeal or significant prejudice if the judgment was enforced pending the appeal. Consequently, the application for a stay was dismissed, and the costs of the respondents in relation to the application were ordered to be the respondents’ costs in the appeal. The court also adjourned an interlocutory application filed by the second and third respondents and reserved costs in respect of that application.

Orders

Orders of the court

1. The third paragraph of the notice of motion filed on 29 July 2011 is struck out.

2. Save to the extent of the stay granted by the orders of 10 August 2011 the application made by notice of motion filed on 29 July 2011 is dismissed.

3. The costs of each of the respondents in respect of that application be those respective respondents’ costs in the appeal in any event.

4. The interlocutory application filed by the second and third respondents on 12 August 2011 is adjourned to a date to be fixed.

5. Liberty to apply to the second and third respondents to restore their application to the list on seven (7) days notice.

6. Costs in respect of the application by the second and third respondents are reserved.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		George v Fletcher (Trustee) (No 2) [2011] FCA 1033
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:		19 August 2011
Catchwords:		PRACTICE AND PROCEDURE – application for stay of judgment under appeal – where appellant had not demonstrated a reason to exercise the discretion in favour of a stay – stay not granted
Cases cited:		George v Fletcher (Trustee) [2011] FCA 952 cited
Date of hearing:	19 August 2011
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	9
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Mr CD Coulsen
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
Counsel for the Fourth Respondent:	Ms S McNeil
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

JUDGE:	LOGAN J
DATE OF ORDER:	19 AUGUST 2011
WHERE MADE:	BRISBANE

BETWEEN:	LAUREN KAY GEORGE Appellant
AND:	WILLIAM JOHN FLETCHER AS TRUSTEE FOR THE BANKRUPT ESTATE OF LAUREN KAY GEORGE First…