FEDERAL COURT OF AUSTRALIA
Storry v Weir [2022] FCA 362
Appeal from: Weir v Storry [2022] FedCFamC2G 183 File number(s): QUD 103 of 2022 Judgment of: COLLIER J Date of judgment: 7 April 2022 Catchwords: PRACTICE AND PROCEDURE – application for interim orders to stay sequestration order of Federal Circuit and Family Court of Australia – whether arguable point on the proposed appeal or rational prospect of success –balance of convenience Legislation: Bankruptcy Act 1966 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011 (Cth)
Magistrates Courts Act 1921 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)
Cases cited: Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] QCA 322
Cox v Journeaux (No 2) [1935] 52 CLR 713
Dyer v Chrysanthou (No 4) [2022] FCA 51
Faulkner v Bluett [1981] FCA 3
Kitay, in the matter of Frigger (No 2) [2018] FCA 1032
National Road Transport Association Ltd v Road Safety Remuneration Tribunal (No 2) [2016] FCAFC 58
Obeid v The Queen [2016] HCA 9
Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28
Viagogo AG v Australian Competition and Consumer Commission [2021] FCA 175
Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 66 Date of hearing: 6 April 2022 Solicitor for the Applicant: The Applicant appeared in person Counsel for the Respondent: P. Van Grinsven Solicitor for the Respondent: SLF Lawyers ORDERS
QUD 103 of 2022 BETWEEN: VENETIA LOUISE STORRY
Applicant
AND: JONATHAN DAVID WEIR
Respondent
ORDER MADE BY:
COLLIER J
DATE OF ORDER:
7 APRIL 2022
THE COURT ORDERS THAT:
1.The interim orders sought by the appellant in her notice of appeal filed on 30 March 2022 be refused.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J
On 30 March 2022 the appellant, Ms Storry, filed a notice of appeal from a decision of the Federal Circuit and Family Court in Weir v Storry [2022] FedCFamC2G 183. In that decision the primary Judge ordered that a sequestration order be made against the estate of Ms Storry under the Bankruptcy Act 1966 (Cth), and that the costs of the petitioning creditor be paid out of the bankrupt’s estate.
Ms Storry’s grounds of appeal are:
1.His Honour erred acted outside his jurisdiction in saying the applicant exhausted her rights to appeal of the Magistrates Decision which was the basis for the Sequestration Order when an appeal existed in the District Court and the prospects of success are not within his jurisdiction to make, nor did he have all of the material, nor was this a judgement asked of him to make.
2.His Honour erred in considering the lawyer's fees that was the basis of the sequestration Order are not standard Magistrate fees but Indemnity fees that were never cost assessed and the application to…
Continue reading Storry v Weir
Sign in free to access the full text
- AGLC
- Storry v Weir [2022] FCA 362
- Case
- [2022] FCA 362
- Decision Date
CaseChat Overview and Summary
The Court considered the principles of staying proceedings under appeal, including the requirement for a reason or appropriate case to warrant a stay, and the need for the applicant to demonstrate a real risk of prejudice if a stay is not granted. The Court noted that Ms Storry had exhausted her avenues of appeal against the Magistrates Court judgment and that any further appeals had no prospects of success. The Court also found that Ms Storry had not provided evidence of her solvency or any other reason why the sequestration order should not be made. The Court concluded that the balance of convenience did not favour Ms Storry, given that the sequestration order was based on an act of bankruptcy and that Ms Storry had failed to pay the judgment sum.
Accordingly, the Court refused the interim orders sought by Ms Storry. The Court noted that Ms Storry's application was an attempt to relitigate issues that had already been decided against her, and that a stay would not prevent any prejudice that she might suffer as a result of the sequestration order. The Court also noted that Ms Storry's personal circumstances, such as finalising her late father's financial affairs and the recent floods in south-east Queensland, did not outweigh the interests of the creditor in enforcing the judgment. The Court found that the primary Judge had correctly exercised his discretion in refusing the stay application, and that there was no basis for the Court to interfere with that decision.
In conclusion, the Court refused the interim orders sought by Ms Storry and upheld the sequestration order made against her by the primary Judge. The Court found that there was no arguable point on the proposed appeal or rational prospect of success, and that the balance of convenience did not favour Ms Storry. The Court emphasised the importance of finality in litigation and the need to avoid unnecessary duplication of proceedings. The Court also noted that the principles of staying proceedings under appeal are not to be lightly invoked, and that the onus is on the applicant to demonstrate a proper basis for a stay.
Orders
Orders of the court
1. The interim orders sought by the appellant in her notice of appeal filed on 30 March 2022 be refused.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The respondent was represented by Counsel, and submitted in summary that the relief sought by Ms Storry should be refused.CONSIDERATION Section 29 of the Federal Court of Australia Act 1976 (Cth) provides:Stay of proceedings and suspension of orders(1) Where an appeal to the Court from another court has been instituted:(a)the Court or a Judge, or a judge of that other court (not being the Federal Circuit and Family Court of Australia (Division 2) or a court of summary jurisdiction), may order, on such conditions (if any) as it or he or she thinks fit, a stay of all or any proceedings under the judgment appealed from; and(b)the Court or a Judge may, by order, on such conditions (if any) as it or he or she thinks fit, suspend the operation of an injunction or other order to which the appeal, in whole or in part, relates.(2) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the stay of proceedings. Further, r 36.08 of the Federal Court Rules 2011 (Cth) allows an appellant to apply to the Federal Court for an order to stay the execution of a proceeding until the appeal is heard and determined. In Viagogo AG v Australian Competition and Consumer Commission [2021] FCA 175 Abrahams J summarised principles relating to the stay or execution or proceedings under a judgment the subject of appeal, as follows:10.Rule 36.08 confers a broad discretion. Generally, there must be demonstrated “a reason or an appropriate case” to warrant the exercise of discretion in favour of granting a stay. It is not necessary to establish special or exceptional circumstances for the grant of a stay: Powerflex Services Pty Ltd v Data Access Corp [1996] FCA 460; (1996) 67 FCR 65 at 66.11.Two questions must be considered: first, is there an arguable point on the proposed appeal: Nolten v Groeneveld Australia Pty Ltd [2011] FCA 1494 (Nolten) at [24] or some “rational prospect of success” in relation to any of the grounds of appeal: Burns v AMP Finance Ltd [2005] FCA 761 at [5]; and second, does the balance of convenience favour the grant of a stay: Nolten at [24], [46].12.The party seeking the order bears the onus of demonstrating a proper basis for a stay, which must be fair to all parties: Alexander v Cambridge Credit Corporation Ltd (receivers appointed) (1985) 2 NSWLR 685 (Alexander) at 695. That party must demonstrate that there is a real risk that it will suffer prejudice or damage if a stay is not granted, which will not be redressed by a successful appeal: Kalifair Pty Ltd v Digi-Tech (Australia) Ltd, McLean Tecnic Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 (Kalifair) at [18]; Flight Centre Limited v Australian Competition and Consumer Commission [2014] FCA 658 (Flight Centre) at [9(f)]. This requirement will be satisfied if a successful appeal will be rendered nugatory unless a stay is granted: Ali v Australian Competition and Consumer Commission [2020] FCA 860 at [11]; Australian Competition and Consumer Commission v BMW (Australia) Ltd (No 2) [2003] FCA 864 (BMW) at [5]; Alexander at 695; Kalifair at [18].13.The successful party at first instance is entitled to presume that the judgment appealed from is correct: Powerflex Services Pty Ltd v Data Access Corp [1996] FCA 460; (1996) 67 FCR 65 at 66, citing Re Middle Harbour Investments Ltd (in liq) (unreported, Court of Appeal NSW, 15 December 1976); Flight Centre at [9(b)]; Wooldridge v Australian Securities and Investments Commission [2015] FCA 349; (2015) 106 ASCR 551 (Wooldridge) at [11]; Urban Alley Brewery Pty Ltd v La Sirène Pty Ltd (No 2) [2020] FCA 351 at [48], [51].