Rangott v Marshall

[2004] FCA 961

FEDERAL COURT OF AUSTRALIA

Rangott v Marshall [2004] FCA 961

BANKRUPTCY – appeal from sequestration order – sequestration order set aside on appeal to Full Court – whether setting aside of sequestration order effective to end bankruptcy in absence of annulment

Bankruptcy Act 1966, s 43(2), s 58(3), s 74, s 153B
Federal Court of Australia Act 1976, s 28

Allanson v Midland Credit Ltd (1977) 30 FLR 108; 16 ALR 43 considered
Cameron v Cole (1944) 68 CLR 571 considered
Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589 considered
Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 considered
Guss v Johnstone (2000) 74 ALJR 884; 171 ALR 598 referred to
Re Schierholter; Ex parte Geis (1978) 32 FLR 22 cited
Re Deriu (1970) 16 FLR 420 distinguished
Simon v Vincent J O’GormanPty Ltd (1979) 41 FLR 95; 27 ALR 619 followed

DA Hassall, ‘Annulment of Bankruptcy and Review of Sequestration Orders’, Australian Law Journal, Vol 67, 1993, pp 761–771
M Quilter, ‘The Federal Court’s Powers to Deal With Sequestration Orders: the Bankruptcy Act 1966 (Cth) Section 37(2)’, Australian Bar Review, Vol 15, 1997, pp 252–261,

WILLIAM BALFOUR RANGOTT v GARRY BRENT MARSHALL
ACD 6 OF 2004

GYLES J
23 JULY 2004
SYDNEY (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 6 OF 2004

BETWEEN:	WILLIAM BALFOUR RANGOTT APPLICANT
AND:	GARRY BRENT MARSHALL RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	23 JULY 2004
WHERE MADE:	SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.   The application is dismissed.

2.   The applicant is to pay the costs of the respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 6 OF 2004

BETWEEN:	WILLIAM BALFOUR RANGOTT APPLICANT
AND:	GARRY BRENT MARSHALL RESPONDENT

JUDGE:	GYLES J
DATE:	23 JULY 2004
PLACE:	SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

1. On 13 August 2002 I made the following order:

   ‘Upon amendment referred to in paragraph [39] of the reasons for judgment being made, the estate of the respondent debtor be sequestrated.’

2. The present respondent, Garry Brent Marshall, was the respondent debtor.  The amendment referred to was made on 13 August 2002.  On the same day the applicant William Balfour Rangott was appointed the trustee in bankruptcy of the estate of the respondent.

3. On 26 August 2002 I made the following orders:

   ‘1.Costs of the Applicant Creditor (including reserved costs) and the costs of EA Bourne Pty Limited up to and including 13 December 2001 of and incidental to the petition be taxed and paid out of the estate of the bankrupt in accordance with the Bankruptcy Act 1966 (Cth).

   2.Further proceedings under the sequestration order be stayed until 4.30pm Wednesday, 28 August 2002.

   3.No order as to costs of that application.’

4. On 18 March 2003 the Full Court made the following orders:

   ‘1.The…