Gould v Day

[2002] FCA 663

FEDERAL COURT OF AUSTRALIA

Gould v Day [2002] FCA 663

STEPHEN GOULD v JULIAN DAY & ANOR
N1652 of 2001

MADGWICK J
9 MAY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1652 of 2001

BETWEEN:	STEPHEN GOULD APPLICANT
AND:	JULIAN DAY FIRST RESPONDENT
AND:	ALAN MANLY SECOND RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	9 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the respondents.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1652 of 2001

BETWEEN:	STEPHEN GOULD APPLICANT
AND:	JULIAN DAY FIRST RESPONDENT
AND:	ALAN MANLY SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	9 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. In this matter the appellant, Mr Gould, appeals against a judgment given by Federal Magistrate Driver in which the learned Magistrate dismissed an application by the appellant for annulment of his bankruptcy pursuant to s 153B of the Bankruptcy Act 1966 (Cth) (“the Act”). As the learned Magistrate understood Mr Gould's application before him:

   “The basis of the application is that the sequestration order, which was made on 7 September 2000 by his Honour Conti J, in the Federal Court, should not have been made because the petitioning creditors had an ulterior motive in seeking to obtain the bankruptcy of Mr Gould.  The applicant also called on the Court to exercise its discretion to annul the bankruptcy so that he can proceed with damages proceedings in the Supreme Court of New South Wales against Mr Day and Mr Manly.  There is an issue whether those proceedings can continue without the consent of the trustee in bankruptcy.”

2. The learned Magistrate gave an ex tempore judgment on 20 December 2001 when each party, including the appellant, appeared in person.  On the same day, the appellant lodged a notice of appeal in this Court from the whole of the judgment of the learned Magistrate.  The grounds of appeal were stated to be:

   “1.The appellant sought legal representation in this matter.  It transpires that the legal firm contacted represented the Insolvency and Trustee Legal Service [ITSA] and actively discourages the Appellant from pursuing the matter. 

   2.As a consequence the Appellant was not properly prepared to provide the appropriate reasons and evidence to Annul the Sequestration Order.”

   The orders sought were that this Court should rescind and set aside the learned Magistrate's order to dismiss Mr Gould’s application to annul the sequestration order and that the application to annul the sequestration order be granted.  It appears that the revision by the learned Magistrate of his reasons first given in ex tempore fashion was not concluded until 15 January 2002.

3. On 19 February 2002 Emmett J gave judgment in a separate and distinct application by the appellant, pursuant to s 153B of the Act, for the annulment of his bankruptcy in consequence of the sequestration order made by Conti J on 7 September 2000. The grounds for…