Cottrell v Nicholls (Trustee) in the matter of Cottrell (Bankrupt) [2004] FCA 102

Cottrell v Nicholls (Trustee) in the matter of Cottrell (Bankrupt) [2004] FCA 102

The Court was not prepared to make orders under s 153B because the substance of the prior proceedings was that there was only one bankruptcy and Conti J, when reviewing the Registrar's decision, intended to affirm the Registrar's sequestration order rather than create a second bankruptcy. The appropriate course was to consider clarifying the order made on 19 September 2001 by vacating order 1 and substituting an order affirming Registrar Tesoriero's orders of 29 November 2000, after allowing the parties to file written submissions.

Jurisdiction
Australia
Judgment Date
27 February 2004
Procedural Posture
Notice of Motion Seeking Annulment of Bankruptcy Under S 153 B of the Bankruptcy Act 1966 (cth) and Setting Aside of a Sequestration Order / Interim Reasons and Orders; Matter Stood Over for Further Orders After Written Submissions
Outcome
The matter was stood over for further orders. The Court was not prepared at that time to make orders under s 153B, proposed to clarify the earlier order, and invited written submissions.
Legal Topics
['sequestration Order' 'annulment of Bankruptcy' "review of Registrar's Order" 'slip or Clarification of Orders' 'trustee in Bankruptcy']
['bankruptcy' 'federal Court Procedure'] ['sequestration Order' 'annulment of Bankruptcy' "review of Registrar's Order" 'slip or Clarification of Orders' 'trustee in Bankruptcy']

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Procedural Posture

Notice of Motion Seeking Annulment of Bankruptcy Under S 153 B of the Bankruptcy Act 1966 (cth) and Setting Aside of a Sequestration Order / Interim Reasons and Orders; Matter Stood Over for Further Orders After Written Submissions

Legal Issues

  1. 1 ['Whether the order made by Conti J on 19 September 2001 should be treated as a second sequestration order giving rise to a second bankruptcy.' 'Whether an order should be made under s 153B of the Bankruptcy Act 1966 (Cth) annulling the bankruptcy or setting aside the asserted second sequestration order.' "Whether the Court should clarify or vary Conti J's order so that it stands as an affirmation of Registrar Tesoriero's sequestration order of 29 November 2000." "Whether the applicant's later document headed urgent application for stay of proceedings should be dealt with."]

Ratio Decidendi

The Court was not prepared to make orders under s 153B because the substance of the prior proceedings was that there was only one bankruptcy and Conti J, when reviewing the Registrar's decision, intended to affirm the Registrar's sequestration order rather than create a second bankruptcy. The appropriate course was to consider clarifying the order made on 19 September 2001 by vacating order 1 and substituting an order affirming Registrar Tesoriero's orders of 29 November 2000, after allowing the parties to file written submissions.

Court Disposition

The matter was stood over for further orders. The Court was not prepared at that time to make orders under s 153B, proposed to clarify the earlier order, and invited written submissions.

Orders

  • ['On or before 12 March 2004, the parties file in the Registry by facsimile or otherwise any submissions in writing they wish to rely on should they wish to argue against the orders proposed in [31] and [35] of the reasons for judgment published today.' 'The matter stand over to a date to be fixed for the making of...