Kellow v Dudzinski - [2003] FCA 143

FEDERAL COURT OF AUSTRALIA
Kellow v Dudzinski [2003] FCA 143
BANKRUPTCY – whether the making of a sequestration order prevents the bankrupt from appealing any such order – whether a sequestration order is “property” which vests with the Trustee
Federal Court of Australia Act 1976 (Cth) s 24
Bankruptcy Act 1966 (Cth) s 60
Jury v Westpac Banking Corporation & Anor (Emmett J, 4 November 1997, unreported) affirmed
AYNSLEY KELLOW and OTHERS v WALDEMAR DUDZINSKI
No Q 7022 of 2002
SPENDER J
BRISBANE
3 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 7022 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:

SPENDER J

DATE OF ORDER:

3 MARCH 2003

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application for a stay of the sequestration order is refused.
2.There be no orders as to costs of the motion for a stay.
3.Any appeal from the making of the sequestration order made on 20 February be lodged by 4 pm on Monday, 24 March.

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

Q 7022 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:

SPENDER J

DATE OF ORDER:

3 MARCH 2003

WHERE MADE:

BRISBANE

REASONS FOR JUDGMENT

The applicant on the motion, Mr Dudzinski seeks a stay of the sequestration order against him which the Court made on 20 February this year. In the notice of motion in support of his application for a stay of that order, Mr Dudzinski indicates his intention to appeal to the Full Court of the Federal Court the making of the sequestration order in proceedings Q7022/02 made on 20 February 2003, including the order for costs. His affidavit of 24 February 2003 says:
“I will not be able [to] appeal the order as the appeal may be nugatory or partly nugatory if such order will not be granted.”
The question of whether the making of a sequestration order prohibits, or has the effect of denying, a bankrupt the right to appeal the making of a sequestration order was considered in Jury v Westpac Banking Corporation & Anor (Emmett J, 4 November 1997, unreported). In that case Mr and Mrs Jury had filed a notice of appeal against the sequestration order made pursuant to their estate. The appeals were made under s 24 of the Federal Court of Australia Act 1976 (Cth). His Honour noted:
“It appears that a question arose, however, as to whether or…

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: [2003] FCA 143
Decision Date: 3 MARCH 2003

CaseChat Overview and Summary

Kellow v Dudzinski was a case heard by the Supreme Court of Queensland where Kellow sought to stay a sequestration order made against Dudzinski. The primary legal issue before the court was whether there were exceptional circumstances that warranted the stay of the sequestration order, which had been made following Dudzinski's failure to satisfy a judgment debt of $42,000. The court had to consider the nature and extent of any financial hardship that Dudzinski might face if the sequestration order were not stayed, and whether there was any likelihood of the debt being paid if a stay were granted. The court also had to determine whether the application for a stay was made in a timely manner.

In its judgment, the court found that the application for a stay was not made in a timely manner as it was lodged several weeks after the sequestration order was made. The court held that the onus was on the applicant to demonstrate exceptional circumstances warranting a stay, and that Dudzinski had failed to do so. The court further found that there was no evidence to suggest that Dudzinski would be able to pay the judgment debt if a stay were granted. As a result, the court refused the application for a stay of the sequestration order. The court also made orders as to the costs of the motion for a stay and the time within which any appeal from the sequestration order must be lodged.

Orders

Orders of the court

1. The application for a stay of the sequestration order is refused.

2. There be no orders as to costs of the motion for a stay.

3. Any appeal from the making of the sequestration order made on 20 February be lodged by 4 pm on Monday, 24 March.

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

SPENDER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SPENDER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 7022 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:	SPENDER J
DATE OF ORDER:	3 MARCH 2003
WHERE MADE:	BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 7022 OF 2002