Re Fuller [1999] FCA 1811

Re Fuller [1999] FCA 1811

The motion to dismiss for want of jurisdiction or restrain further steps fails because, even accepting the prior judgment was made without jurisdiction, the sequestration order and ensuing proceedings are valid unless set aside; orders of the Federal Court as a superior court are voidable, not void, and remain effective.

Parties
First Applicant: Hugh Jenner Wily as Trustee of the Estate of Michael John Fuller; Second Applicant: M J Fuller Services Pty Limited (In Liquidation); First Respondent: Laima Ann Fuller; Second Respondents: Lynn Wilkinson and Nora Wilkinson; Third Respondent: Michael John Fuller
Jurisdiction
Australia
Judgment Date
23 December 1999
Procedural Posture
Bankruptcy / Practice and Procedure / Interlocutory Motion to Dismiss Proceedings for Want of Jurisdiction or Restrain Further Steps
Outcome
Motion dismissed. Mr Fuller to pay applicants' costs.
Legal Topics
Jurisdiction of Superior Courts, Void Vs Voidable Judgments, Sequestration Order Validity, Effect of High Court's Decision in Re Wakim
Bankruptcy Practice and Procedure Jurisdiction of Superior Courts Void Vs Voidable Judgments Sequestration Order Validity Effect of High Court's Decision in Re Wakim

Case Brief

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Parties

Hugh Jenner Wily as Trustee of the Estate of Michael John Fuller

First Applicant

M J Fuller Services Pty Limited (In Liquidation)

Second Applicant

Laima Ann Fuller

First Respondent

Lynn Wilkinson and Nora Wilkinson

Second Respondents

Michael John Fuller

Third Respondent

Procedural Posture

Bankruptcy / Practice and Procedure / Interlocutory Motion to Dismiss Proceedings for Want of Jurisdiction or Restrain Further Steps

Legal Issues

  1. 1 Whether the judgment upon which the sequestration order was made was void for want of jurisdiction
  2. 2 Whether a sequestration order based on a void judgment is itself void or voidable
  3. 3 Whether current bankruptcy proceedings should be stayed or dismissed for want of jurisdiction

Ratio Decidendi

The motion to dismiss for want of jurisdiction or restrain further steps fails because, even accepting the prior judgment was made without jurisdiction, the sequestration order and ensuing proceedings are valid unless set aside; orders of the Federal Court as a superior court are voidable, not void, and remain effective.

Court Disposition

Motion dismissed. Mr Fuller to pay applicants' costs.

Orders

  • The motion be dismissed.
  • Michael Fuller pay the applicants' costs of the motion.