Cottrell v Wilcox [2003] FCA 600

Cottrell v Wilcox [2003] FCA 600

The applicant did not establish special reasons for an extension of time because his evidence of ill health did not satisfactorily explain why he could file a draft notice of appeal on 16 April 2003 but could not have done so during the preceding nearly seven months, particularly when he was able to prepare and file a Local Court notice of motion around 26 September 2002 and appear in that court on 29 October 2002. In any event, the proposed appeal was doomed to fail: Branson J was entitled to rely on the trustee's report, the later setting aside of the judgment debt was not itself relevant to whether the sequestration order ought not to have been made, and none of the proposed grounds...

Jurisdiction
Australia
Judgment Date
18 June 2003
Procedural Posture
Application Under O 52 Subr 15(2) of the Federal Court Rules for an Extension of Time to File and Serve a Notice of Appeal / Determination of Application for Extension of Time
Outcome
Application dismissed with costs.
Legal Topics
['extension of Time to Appeal' 'annulment of Bankruptcy' 'special Reasons' 'prospects of Appeal' "trustee's Report"]
['bankruptcy' 'practice and Procedure'] ['extension of Time to Appeal' 'annulment of Bankruptcy' 'special Reasons' 'prospects of Appeal' "trustee's Report"]

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application Under O 52 Subr 15(2) of the Federal Court Rules for an Extension of Time to File and Serve a Notice of Appeal / Determination of Application for Extension of Time

Legal Issues

  1. 1 ['Whether the applicant established special reasons for an extension of time of nearly seven months to file and serve a notice of appeal.' "Whether the applicant's ill health satisfactorily explained the delay." 'Whether the proposed appeal against dismissal of the s 153B annulment application had arguable prospects of success.' "Whether Branson J was entitled to rely on the trustee's report in determining the annulment application." 'Whether the subsequent setting aside of the judgment debt was relevant to whether the sequestration order ought not to have been made.']

Ratio Decidendi

The applicant did not establish special reasons for an extension of time because his evidence of ill health did not satisfactorily explain why he could file a draft notice of appeal on 16 April 2003 but could not have done so during the preceding nearly seven months, particularly when he was able to prepare and file a Local Court notice of motion around 26 September 2002 and appear in that court on 29 October 2002. In any event, the proposed appeal was doomed to fail: Branson J was entitled to rely on the trustee's report, the later setting aside of the judgment debt was not itself relevant to whether the sequestration order ought not to have been made, and none of the proposed grounds...

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The applicant pay the respondent's costs."]