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Kellow v Dudzinski

Kellow v Dudzinski

Case [2003] FCA 238 24 March 2003

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FEDERAL COURT OF AUSTRALIA
Kellow v Dudzinski [2003] FCA 238
PRACTICE AND PROCEDURE - leave to appeal interlocutory order - stay pending appeal - sequestration order - Federal Court Rules 1979 (Cth) O 52 r 17 - Bankruptcy Act 1966 (Cth) s 60.
Bankruptcy Act 1966 (Cth)
Evans v Heather Thiedeke Group Pty Ltd (1990) 95 ALR 484
Jury v Westpac Banking Corporation & Anor [1997] FCA 1277
Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65
Starborne Holdings Pty Ltd v Radferry Pty Ltd and Ors [1998] FCA 548
Coleman v Lazy Days Investments Pty Ltd (1994) 55 FCR 297
Freeman v National Australia Bank Ltd [2002] FCA 427
Beames v Rigby [2002] FCA 806
Cummings v Claremont Petroleum NL (1995) 185 CLR 124
Bourke v State Bank of New South Wales [1995] FCA 566 (FC)
Griffiths v Civil Aviation Authority (1996) 67 FCR 301
Dudzinski v Kellow [2002] FCAFC 402
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (FC)
Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748
Cummings v Lewis (1993) 41 FCR 559 (FC)
AYNSLEY KELLOW, ROY RICKSON, ERROL STOCK, BILL HOGARTH, CORDIA CHU, KEES HULSMAN, LYN HOLMAN, COLIN MCANDREW, JOHN SCOTT AND GRIFFITH UNIVERSITY v WALDEMAR DUDZINSKI
Q7022 OF 2002
COOPER J
BRISBANE
24 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q7022 OF 2002

BETWEEN:

AYNSLEY KELLOW
FIRST APPLICANT

ROY RICKSON
SECOND APPLICANT

ERROL STOCK
THIRD APPLICANT

BILL HOGARTH
FOURTH APPLICANT

CORDIA CHU
FIFTH APPLICANT

KEES HULSMAN
SIXTH APPLICANT

LYN HOLMAN
SEVENTH APPLICANT

COLIN MCANDREW
EIGHTH APPLICANT

JOHN SCOTT
NINTH APPLICANT

GRIFFITH UNIVERSITY
TENTH APPLICANT

AND:

WALDEMAR DUDZINSKI
RESPONDENT

JUDGE:

COOPER J

DATE OF ORDER:

24 MARCH 2003

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application for leave to appeal the order of Justice Spender made on 3 March 2003, refusing to stay a sequestration order made against the applicant on 20 February 2003, be dismissed.
2.The applicant pay the respondent’s costs of and incidental to the application to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q7022 OF 2002

BETWEEN:

AYNSLEY KELLOW
FIRST APPLICANT

ROY RICKSON
SECOND APPLICANT

ERROL STOCK
THIRD APPLICANT

BILL HOGARTH
FOURTH APPLICANT

CORDIA CHU
FIFTH APPLICANT

KEES HULSMAN
SIXTH APPLICANT

LYN HOLMAN
SEVENTH APPLICANT

COLIN MCANDREW
EIGHTH APPLICANT

JOHN SCOTT
NINTH APPLICANT

GRIFFITH UNIVERSITY
TENTH APPLICANT

AND:

WALDEMAR DUDZINSKI
RESPONDENT

JUDGE:

COOPER J

DATE:

24 MARCH 2003

PLACE:

BRISBANE

REASONS FOR JUDGMENT

On 20 February 2003, a sequestration order was made against the estate of Waldemar Dudzinski. A stay of the sequestration order pending an appeal to a Full Court of this Court was refused on 3 March 2003. Mr Dudzinski now seeks leave to appeal the decision to refuse a stay of the sequestration order.
The application for a stay of the sequestration order was sought on the grounds that:
(a)the stay was…

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.

Continue reading Kellow v Dudzinski

Details

AGLC: Kellow v Dudzinski [2003] FCA 238
Case: [2003] FCA 238
Decision Date: 24 MARCH 2003

CaseChat Overview and Summary

The matter of Kellow v Dudzinski was heard before the Supreme Court of Victoria. The applicant, Kellow, sought to appeal an order made by Justice Spender on 3 March 2003, which refused to stay a sequestration order that had been issued against Kellow on 20 February 2003. The respondent, Dudzinski, opposed the application on the grounds that it lacked merit and was an abuse of process. The court was required to determine whether Kellow's application for leave to appeal should proceed and, if not, whether Kellow should be ordered to pay the respondent's costs.

The primary legal issue before the court was whether Kellow's application for leave to appeal was an abuse of process or otherwise an improper use of the court's resources. The court examined the circumstances surrounding the application, the merits of the appeal itself, and whether the application was brought in good faith. The respondent argued that the application was frivolous and vexatious, given the lack of a substantial argument against the sequestration order. The court also considered whether the application was brought to delay or otherwise frustrate the enforcement of the sequestration order.

In dismissing the application, the court found that the application for leave to appeal was indeed an abuse of process. The court held that Kellow had failed to demonstrate any reasonable prospect of success on the merits of the appeal and that the application was brought without any bona fide intention to pursue the appeal. The court emphasised the importance of using the court's processes appropriately and found that this application was not a proper use of the court's time and resources. Consequently, the court ordered that Kellow pay the respondent's costs of and incidental to the application, to be taxed if not agreed.

Orders

Orders of the court

1. The application for leave to appeal the order of Justice Spender made on 3 March 2003, refusing to stay a sequestration order made against the applicant on 20 February 2003, be dismissed.

2. The applicant pay the respondent’s costs of and incidental to the application to be taxed if not agreed.

Note:

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

COOPER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: COOPER J

Full text does not contain this section.

Citations

AGLC Citation

Kellow v Dudzinski [2003] FCA 238

Most Recent Citation

Boensch v Pascoe [2007] FCA 1977

Cases citing this decision · 11 of 11 shown

Owners - Strata Plan 93392 v Sethi, in the matter of Sethi
[2025] FedCFamC2G 897 Para 35

…lance of convenience favours the granting of a stay: see Freeman at [3]-[4]; Coleman at 303; Beames v Rigby [2002] FCA 806 at [2]; Kellow v Dudzinski [2003] FCA 238 (“ Dudzinski ”) at [8]; and Shirreff v Beck Legal Pty Ltd [2010] FCA 1407 at [67], (2010) 119 ALD 284 at 293-294 [67]. The test for a stay under s 52…
Deputy Commissioner of Taxation v Nugawela
[2017] FCCA 1289 Para 1

…convenience favours the granting of a stay: see Freeman at [3]-[4 ]; Coleman at 303; Beames v Rigby [2002] FCA 806 at [2]; Kellow v Dudzinski [2003] FCA 238 (“Dudzinski”) at [8]; and Shirreff v Beck Legal Pty Ltd [2010] FCA 1407 at [67], (2010) 119 ALD 284 at 293-294 [67]. The test for a stay under s 52(3) of the…
Ghosh v Miller
[2016] FCA 1293 Para 6

…ance of convenience favours the granting of a stay : see Freeman at [3]-[4]; Coleman at 303; Beames v Rigby [2002] FCA 806 at [2]; Kellow v Dudzinski [2003] FCA 238 (“ Dudzinski ”) at [8]; and Shirreff v Beck Legal Pty Ltd [2010] FCA 1407 at [67], (2010) 119 ALD 284 at 293-294 [67]. The test for a stay under s 52…
Psevdos v Commonwealth Bank of Australia
[2016] FCA 844 Para 13

…id not vest in the trustee under s 58 of the Act. He relied on Jury v Westpac Corporation [1997] FCA 1277 (‘ Jury ’) and Kellow v Dudzinski [2003] FCA 238 (‘ Dudzinski ’). However the proposition is misdirected. Sections 58 and 60 of the Act have different work to do. In particular, s 60 applies only to proceedin…
Nadarajapillai v Naderasa
[2015] FCA 1022 Para 23

…In Kellow v Dudzinski [2003] FCA 238, Cooper J dismissed an application for leave to appeal from a decision of Spender J refusing to grant a stay of a sequestration order. Cooper J found that the basis on which the stay was refused did not disclose any misunderstanding or misapplication of the relevant legal prin…
Barton v Malcolm Johns Legal Pty Ltd
[2014] FCA 1057 Para 11

…lance of convenience favours the granting of a stay: see Freeman at [3]-[4]; Coleman at 303; Beames v Rigby [2002] FCA 806 at [2]; Kellow v Dudzinski [2003] FCA 238 (“ Dudzinski ”) at [8]; and Shirreff v Beck Legal Pty Ltd [2010] FCA 1407 at [67], [2010] FCA 1407; (2010) 119 ALD 284 at 293-294 [67]. The test for…
Purnell Motors Pty Ltd v Jones
[2014] FCCA 620 Para 3

…limited as to time. 17. Subsequent decisions of this Court have referred to and impliedly agreed with the decision in Evans: see Kellow v Dudzinski [2003] FCA 238 per Cooper J; Coleman v Lazy Days Investment Pty Ltd (1994) 55 FCR 297; Freeman v National Australia Bank Ltd [2002] FCA 427 per Spender J. 18. In Powe…
Lahood v Bank of Western Australia
[2013] FCA 137 Para 5

…lance of convenience favours the granting of a stay: see Freeman at [3]-[4]; Coleman at 303; Beames v Rigby [2002] FCA 806 at [2]; Kellow v Dudzinski [2003] FCA 238 (“Dudzinski”) at [8]; and Shirreff v Beck Legal Pty Ltd [2010] FCA 1407 at [67], (2010) 119 ALD 284 at 293-294 [67]. The test for a stay under s 52(3…
Nolten v Groeneveld Australia Pty Ltd
[2011] FCA 1494 Para 4

…lance of convenience favours the granting of a stay: see Freeman at [3]-[4]; Coleman at 303; Beames v Rigby [2002] FCA 806 at [2]; Kellow v Dudzinski [2003] FCA 238 (“ Dudzinski ”) at [8]; and Shirreff v Beck Legal Pty Ltd [2010] FCA 1407 at [67], (2010) 119 ALD 284 at 293-294 [67]. The test for a stay under s 52…
Ekes v QBE Insurance (Australia) Limited
[2011] FCA 230 Para 17

…Subsequent decisions of this Court have referred to and impliedly agreed with the decision in Evans : see Kellow v Dudzinski [2003] FCA 238 per Cooper J; Coleman v Lazy Days Investment Pty Ltd (1994) 55 FCR 297; Freeman v National Australia Bank Ltd [2002] FCA 427 per Spender J.…
Boensch v Pascoe
[2007] FCA 1977 Para 22

…did not vest in the trustee under s 58 of the Act. He relied on Jury v Westpac Corporation [1997] FCA 1277 ( ‘Jury’ ) and Kellow v Dudzinski [2003] FCA 238 ( ‘Dudzinski’ ). However the proposition is misdirected. Sections 58 and 60 of the Act have different work to do. In particular, s 60 applies only to proceed…

View all 11 citing cases →

Cases cited in this decision · 18 of 18 shown

Network Ten Pty Ltd v TCN Channel Nine Pty Ltd
[2004] HCA 14 Para 21

…e Full Court. Another circumstance is whether substantial injustice would result if leave were refused supposing the decision to be wrong: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (FC).…
Dudzinski v Kellow
[2002] FCAFC 402 Para 17

…urt of Australia in application B108/2002. That application seeks leave to appeal from a decision of a Full Court of this Court in Dudzinski v Kellow [2002] FCAFC 402, wherein the Full Court refused to set aside the bankruptcy notice upon which the act of bankruptcy relied upon to obtain the sequestration order was…
Beames v Rigby
[2002] FCA 806 Para 8

…a stay: Coleman v Lazy Days Investments Pty Ltd (1994) 55 FCR 297 at 303; Freeman v National Australia Bank Ltd [2002] FCA 427 at [3]; Beames v Rigby [2002] FCA 806 at [2].…
Freeman v National Australia Bank Ltd
[2002] FCA 427 Para 8

…f convenience favours the granting of a stay: Coleman v Lazy Days Investments Pty Ltd (1994) 55 FCR 297 at 303; Freeman v National Australia Bank Ltd [2002] FCA 427 at [3]; Beames v Rigby [2002] FCA 806 at [2].…
Starborne Holdings Pty Ltd v Radferry Pty Ltd
[1998] FCA 548 Para 7

…The fact of a bona fide and timely appeal does not of itself justify the grant of a stay: Starborne Holdings Pty Ltd v Radferry Pty Ltd and Ors [1998] FCA 548 at p 4.…
Jury, Houda v Westpac Banking Corp and Anor Jury, Eric Abraham v Westpac Banking Corp and Anor
[1997] FCA 1277 Para 4

…nski had a personal right to initiate and litigate an appeal against the making of the sequestration order: Jury v Westpac Banking Corporation & Anor [1997] FCA 1277; (b)other litigation initiated in this Court, the Supreme Court of Queensland and the High Court of Australia would not be prejudiced by the operatio…
Powerflex Services Pty Ltd v Data Access Corporation
[1996] FCA 460 Para 6

…2 r 17 of the Federal Court Rules, relating to the grant of a stay of proceedings pending an appeal, were considered by a Full Court of this Court in Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65. Delivering the judgment of the Court, Burchett J said (at 66): “The principles applicable depend on the terms of O 52, r 17 of the Federal…
Henderson v Amadio Pty Ltd (No 3)
[1996] FCA 309 Para 6

…The principles applicable to an exercise of the discretion under O 52 r 17 of the Federal Court Rules, relating to the grant of a stay of proceedings pending an appeal, were considered by a Full Court of this Court in Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65. Delivering …
Henderson v Amadio Pty Ltd
[1996] FCA 184 Para 6

…itation upon a broad discretion inhering in the Court. Several judges of the Court, most recently Heerey J in Henderson v Amadio Pty Ltd (No 3) (1996) 65 FCR 66 have followed the decision of the Court of Appeal of New South Wales in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 6…
Cummings v Lewis
[1993] FCA 190 Para 25

…ow the event in accordance with the general rule: Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 at 48, 136; Cummings v Lewis (1993) 41 FCR 559 (FC) at 603.…
Décor Corporation Pty Ltd v Dart Industries Inc
[1991] FCA 844 Para 21

…her substantial injustice would result if leave were refused supposing the decision to be wrong: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (FC).…
Evans v Heather Thiedeke Group Pty Ltd
[1990] FCA 551 Para 3

…In support of his application for a stay, Mr Dudzinski relied upon the decision of Pincus J in Evans v Heather Thiedeke Group Pty Ltd (1990) 95 ALR 484 as authority for the proposition that: (a)the Court had power to order proceedings under the sequestration order be stayed pending determination of an appeal, notwithstanding the provision of s…
Hughes v Western Australian Cricket Association (inc)
[1986] FCA 465 Para 25

…Costs should follow the event in accordance with the general rule: Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 at 48, 136; Cummings v Lewis (1993) 41 FCR 559 (FC) at 603.…
Hughes v Western Australian Cricket Association (Inc)
[1986] FCA 382 Para 25

…Costs should follow the event in accordance with the general rule: Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 at 48, 136; Cummings v Lewis (1993) 41 FCR 559 (FC) at 603.…
Bourke v State Bank of New South Wales
[1995] FCA 566 Para 14

…tation of the bankrupt is maintainable by the bankrupt, notwithstanding his or her bankruptcy: s 116; s 60(4): Bourke v State Bank of New South Wales [1995] FCA 566 (FC); Griffiths v Civil Aviation Authority (1996) 67 FCR 301 at 324.…
[1996] FCA 1502
[1996] FCA 1502 Para 14

…twithstanding his or her bankruptcy: s 116; s 60(4): Bourke v State Bank of New South Wales [1995] FCA 566 (FC); Griffiths v Civil Aviation Authority (1996) 67 FCR 301 at 324.…
Cummings v Claremont Petroleum NL
[1996] HCA 19 Para 9

…he suit of Mr Dudzinski if he chose to file and prosecute an appeal. In this, his Honour was undoubtedly correct: Cummings v Claremont Petroleum NL (1995) 185 CLR 124 at 133 - 136; Jury v Westpac Banking Corporation at p 2.…
Alexander v Cambridge Credit Corporation Ltd
(1987) 9 NSWLR 310 Para 6

…recently Heerey J in Henderson v Amadio Pty Ltd (No 3) (1996) 65 FCR 66 have followed the decision of the Court of Appeal of New South Wales in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685, where, at 694, that Court said it was ‘sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the…

Legislation cited in this decision · 2

Bankruptcy Act 1966 (Cth)
60 2 mentions (from Para 3)
Federal Court Rules 1979 (Cth)
1 mention (from Para 6)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q7022 OF 2002

BETWEEN:	AYNSLEY KELLOW FIRST APPLICANT ROY RICKSON SECOND APPLICANT ERROL STOCK THIRD APPLICANT BILL HOGARTH FOURTH APPLICANT CORDIA CHU FIFTH APPLICANT KEES HULSMAN SIXTH APPLICANT LYN HOLMAN SEVENTH APPLICANT COLIN MCANDREW EIGHTH APPLICANT JOHN SCOTT NINTH APPLICANT GRIFFITH UNIVERSITY TENTH APPLICANT
AND:	WALDEMAR DUDZINSKI RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	24 MARCH 2003
WHERE MADE:	BRISBANE

JUDGE:	COOPER J
DATE:	24 MARCH 2003
PLACE:	BRISBANE