Cottrell v Wilcox [2001] FCA 1890

Cottrell v Wilcox [2001] FCA 1890

The stay was refused because the reason advanced by Mr Cottrell, namely his pending Local Court application, had already been before Conti J when the sequestration order was made; the appeal was shortly fixed before the Full Court; and, on Mr Cottrell's own evidence that he had no assets, the trustee was unlikely to get in assets before the appeal. The remaining relief effectively raised matters for the Full Court on the appeal and was stood over accordingly.

Jurisdiction
Australia
Judgment Date
21 December 2001
Procedural Posture
Appeal From Sequestration Order / Notice of Motion Seeking Stay and Related Relief Pending Full Court Appeal
Outcome
Stay refused; motion dismissed in part and stood over in part; appellant ordered to pay respondent's costs of the motion to date.
Legal Topics
['sequestration Order' 'stay Pending Appeal' 'notice of Motion' 'costs']
['bankruptcy' 'civil Procedure'] ['sequestration Order' 'stay Pending Appeal' 'notice of Motion' 'costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal From Sequestration Order / Notice of Motion Seeking Stay and Related Relief Pending Full Court Appeal

Legal Issues

  1. 1 ["Whether the sequestration order made against Mr Cottrell's estate should be stayed pending the hearing of his appeal before the Full Court." "Whether the motion seeking to set aside Conti J's judgment and dismiss the sequestration order should be determined by a single judge or stood over to the Full Court."]

Ratio Decidendi

The stay was refused because the reason advanced by Mr Cottrell, namely his pending Local Court application, had already been before Conti J when the sequestration order was made; the appeal was shortly fixed before the Full Court; and, on Mr Cottrell's own evidence that he had no assets, the trustee was unlikely to get in assets before the appeal. The remaining relief effectively raised matters for the Full Court on the appeal and was stood over accordingly.

Court Disposition

Stay refused; motion dismissed in part and stood over in part; appellant ordered to pay respondent's costs of the motion to date.

Orders

  • ['The motion brought by notice of motion filed on 11 October 2001 in so far as it seeks the relief in par (3) be dismissed.' 'The motion brought by notice of motion filed on 11 October 2001 in so far as it seeks the relief in pars (1) and (2) be stood over to the Full Court on 13 February 2002.' "The appellant pay...