Ogle v Tendiris Pty Limited

[2007] FCA 1638

FEDERAL COURT OF AUSTRALIA

Ogle v Tendiris Pty Limited [2007] FCA 1638

DONALD GORDON OGLE v TENDIRIS PTY LIMITED AND MARK WILLIAM PEARCE

QUD 340 OF 2007

LOGAN J
19 OCTOBER 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 340 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

DONALD GORDON OGLE
Appellant

AND:

TENDIRIS PTY LIMITED
First Respondent

MARK WILLIAM PEARCE
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	19 OCTOBER 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. Proceedings under the sequestration order made on 26 September 2007 against Donald Gordon Ogle be stayed until the determination of Mr Ogle’s appeal from the order making that sequestration order or earlier order.

2. The applicant prepare and file his statement of affairs within 14 days of today.

3. The stay of proceedings under the sequestration order continue only whilst the appeal against the making of the sequestration order is prosecuted with due expedition and diligence.

4. There be liberty to apply to each party on three days’ notice.

5. There be no order in respect of the costs of the trustee in respect of today’s motion and that otherwise the costs of the motion be costs in the appeal.

6. Further directions adjourned to a date to be fixed.

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 340 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

DONALD GORDON OGLE
Appellant

AND:

TENDIRIS PTY LIMITED
First Respondent

MARK WILLIAM PEARCE
Second Respondent

JUDGE:	LOGAN J
DATE:	19 OCTOBER 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is a notice of motion wherein the appellant, Donald Gordon Ogle, seeks a stay of proceedings under the sequestration order which was made on 26 September 2007 in the Federal Magistrates Court in relation to his estate until the determination of the appeal or earlier order. 

2. There is further order sought, by way of the motion, that the second respondent, Mark William Pearce, who is the trustee of the bankrupt estate of the appellant and applicant, be restrained in particular ways from dealing with the estate of the appellant until the determination of the appeal or earlier order.  The motion also seeks provision in respect of costs.

3. A notice of appeal was filed on the same day as the notice of motion, namely 12 October 2007.  Like Spender J in Freeman v National Australia Bank Ltd [2002] FCA 427 (Freeman) and Siopis J in Greyson v Commonwealth Bank of Australia [2005] FCA 1108, I am satisfied that, given that there has been a notice of appeal filed, the Court does have power to stay proceedings in respect of the sequestration order pursuant to O 52 r 17 of the Federal Court Rules.

4. In that regard, I refer, respectfully, to a line of cases, as did Spender J, which are to be found in terms of root authority…