O'Meara v Hitwise Pty Ltd

[2007] FCA 487

FEDERAL COURT OF AUSTRALIA

O’Meara v Hitwise Pty Ltd [2007] FCA 487

HEDLEY JOHN O'MEARA v HITWISE PTY LTD AND WARREN BRIAN WHITE (TRUSTEE)
QUD 93 OF 2007

SPENDER J
28 MARCH 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 93 OF 2007

BETWEEN:

HEDLEY JOHN O'MEARA
Applicant

AND:

HITWISE PTY LTD
First Respondent

WARREN BRIAN WHITE (TRUSTEE)
Second Respondent

JUDGE:	SPENDER J
DATE OF ORDER:	28 MARCH 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The applicant be  granted leave to appeal the dismissal by Dowsett J on 9 March 2007 of the application for a stay of the sequestration order.

2.The applicant file and serve the notice of appeal within 7 days from today.

3.The costs of the parties on the application for leave be their costs in the appeal.

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	QUD 93 OF 2007

BETWEEN:

HEDLEY JOHN O'MEARA
Applicant

AND:

HITWISE PTY LTD
First Respondent

WARREN BRIAN WHITE (TRUSTEE)
Second Respondent

JUDGE:	SPENDER J
DATE:	28 MARCH 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from an interlocutory judgment of Dowsett J refusing an application by the applicant for a stay of the sequestration order that resulted from the judgment and orders of Wilson FM on 22 December 2006.

2. There is, in my view, an arguable point in relation to the correctness of the judgment and orders of Wilson FM.  Dowsett J was not concerned with the merits of any appeal from that judgment, but was concerned only with the question of a stay.  However, it was not put before the learned primary judge that there were in existence the matters that I have canvassed with Mr Catlin, counsel for the first respondent, which cause disquiet in me, at least in relation to the orders that were made by Wilson FM and what, in fact, is the creditor's petition which is or may be extant.

3. Those matters are matters that seem to me to be central to the question of the applicant’s appeal from the judgment and orders of Wilson FM, and, I have to say, somewhat peripheral to the question of whether I should grant leave to appeal from the refusal of the stay. 

4. While it is peripheral, it is not irrelevant to note that, in my judgment, there are seriously arguable points in favour of a successful appeal.  I put it no higher than that.  But my assessment in that regard is based on the fact that, on a review of the orders of Wilson FM and considering the preceding orders in this matter, there has not been a sequestration order made on the debt which Hitwise Pty Ltd (‘Hitwise’) has claimed.

5. There has been an exploration of the existence of that debt by the Federal Magistrate and his Honour has concluded that he is satisfied that there is, in truth and reality, that debt, and the contrary contention as a basis for not making a sequestration, failed.  It is as if his Honour was hearing a creditor's petition on the petition of Hitwise.

6. If that was, in fact, what his Honour was doing, he made no order of sequestration on that petition.  What his Honour did do, by his orders, is reinstate or reaffirm the sequestration order ordered by the Registrar on 27 September 2005.  In respect of that, in par 85 of his Honour’s reasons, he expressed the view that that sequestration order ought not to have been made.

7. So there seems to me to be an important inconsistency between what his Honour finds in par 85 and the effect of his Honour’s order dismissing the application to review the sequestration order made by the Registrar.  This is heightened by the absence of the making of any sequestration order based on the debt that Hitwise claims that the applicant owes, and which the Federal Magistrate was satisfied the applicant owed, to Hitwise.

8. I am not at all sanguine that the grant of leave will be of any assistance to the applicant in what may be his Don Quixote assault on the original debt of Hitwise.  Notwithstanding that, it seems to me that I ought to grant leave to appeal the refusal of Dowsett J to stay the sequestration order, which, on the orders of Wilson FM, I take to be the sequestration order made by the Registrar on 27 September 2005. 

9. So the only order that I make is that the applicant have leave to appeal the dismissal by Dowsett J on 9 March 2007 of the application for a stay of the sequestration order, which I take to be the sequestration order made by the Registrar on 27 September 2005 on the petition of Hall and Wilcox.

10. I order that the applicant file and serve the notice of appeal within 7 days from today.

11. It seems to me to be appropriate that the costs of the applicant’s application for leave, which it was necessary to make, should abide the outcome of the appeal against the refusal to order a stay of the sequestration order.   I therefore order that the costs of the parties on the application for leave be their costs in the appeal.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:  

Dated:       5 April 2007

Applicant appeared in person
Counsel for the First Respondent:	Mr J D Catlin (by telephone)
Solicitor for the First Respondent:	Matthew Shaw & Associates
Date of Hearing:	28 March 2007
Date of Judgment:	28 March 2007