Wilcox v French Summary

FEDERAL COURT OF AUSTRALIA
Wilcox v French [2000] FCA 1460
GRAHAM MILTON WILCOX AND OTHERS v
JOHN DESMOND FRENCH
N 8095 of 1999
HILL J
10 OCTOBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 8095 OF 1999

IN THE MATTER OF JOHN FRENCH

BETWEEN:

GRAHAM MILTON WILCOX
ROSSANA WILCOX
JOHN WILLIAM SPICER
BIRGITTA SPICER
APPLICANTS

AND:

JOHN DESMOND FRENCH
RESPONDENT

JUDGE:

HILL J

DATE:

10 OCTOBER 2000

PLACE:

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

Before the Court is a motion by Mr French, a bankrupt, that a sequestration order made by Tamberlin J on 30 August 2000 be set aside and an order be made staying all applications. In addition the motion seeks an extension of time in which the bankrupt can appeal against the making of a sequestration order.
The substantive matter that the solicitor for the bankrupt wishes to agitate is whether, having regard to s 238 of the Bankruptcy Act 1966 (Cth), it was permissible for Tamberlin J to make a sequestration order on a petition when both the petition and an application to set aside a composition were heard at the same time. The argument is that it was not competent on the part of the petitioning creditors to present a petition or proceed with it during such time as a valid composition was on foot.
It seems to me that a proceeding by way of motion is misconceived. The appropriate way in which the matter may be agitated by the bankrupt is by an appeal against the judgment of Tamberlin J. It appears that an appeal has been lodged against his Honour’s judgment so far as it deals with setting aside the composition but not so far as it deals with the making of the sequestration order.
Clearly it is appropriate that the matter which the bankrupt seeks to agitate be heard by a Full Court at the same time as that Full Court hears the appeal against the order of Tamberlin J setting aside the composition. It is for that reason that I would extend the time for appeal against the sequestration order until 4.00 pm tomorrow to enable an appropriate notice of appeal to be filed.
It would no doubt be competent for the bankrupt to bring an application to annul the sequestration order on the basis that it should not have been made, that is not the application made. Further such an application should be made by filing an application and not a motion. In any event it seems to me that the present is not really an appropriate case for an application for annulment. I would accordingly, but subject to extending the time for the appeal, dismiss the motion with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.
Associate:
Dated: 10 October 2000

Solicitor for the Applicant: Kemp Strang Lawyers

Solicitor for the Respondent: Douglas Knaggs

Date of Hearing: 10 October 2000

Date of Judgment: 10 October 2000

CaseChat Overview and Summary

In the Federal Court of Australia, Graham Milton Wilcox and others sought to have a sequestration order made against John Desmond French set aside. French, the respondent, argued that the sequestration order was improperly made while a composition agreement was still in effect. The court was asked to determine whether the sequestration order could be made while a composition was still valid. The case hinged on the interpretation of section 238 of the Bankruptcy Act 1966 (Cth), which governs the conditions under which a sequestration order can be made.

The legal issue before the court was whether the sequestration order was correctly made given the composition agreement was still active. French argued that the sequestration order was invalid because it was made while a valid composition was still in place. The court had to determine whether the petitioning creditors could proceed with the petition during the time a composition was valid. The court also needed to consider the appropriate process for French to challenge the sequestration order, given that he had already appealed the setting aside of the composition.

The court held that the motion to set aside the sequestration order was misconceived and that the proper course of action was an appeal against the judgment. Hill J noted that French had already appealed the setting aside of the composition but not the sequestration order itself. To allow the appeal against the sequestration order to proceed, Hill J extended the time for filing the appeal. The court also dismissed French's motion with costs, noting that an application to annul the sequestration order should have been made instead of a motion. The court found that the circumstances did not warrant an application for annulment at that time.

The final orders of the court were to dismiss the motion with costs and to extend the time for French to appeal the sequestration order until the following day. This allowed French to file a notice of appeal against the sequestration order, enabling the Full Court to hear both the appeal against the setting aside of the composition and the appeal against the sequestration order simultaneously.

Wilcox v French

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 8095 OF 1999

BETWEEN:	GRAHAM MILTON WILCOX ROSSANA WILCOX JOHN WILLIAM SPICER BIRGITTA SPICER APPLICANTS
AND:	JOHN DESMOND FRENCH RESPONDENT

JUDGE:	HILL J
DATE:	10 OCTOBER 2000
PLACE:	SYDNEY

Solicitor for the Applicant:	Kemp Strang Lawyers
Solicitor for the Respondent:	Douglas Knaggs
Date of Hearing:	10 October 2000
Date of Judgment:	10 October 2000