Cottrell v Wilcox [2001] FCA 193

Cottrell v Wilcox [2001] FCA 193

The motion for a stay was dismissed because Mr Cottrell failed to show any arguable appellable error in Conti J's decision affirming the sequestration order. There was no evidence supporting the Rozenbes categories of abuse of process, and no evidence that Mr Cottrell's asserted defence or cross-claim in the Wagga Wagga Local Court proceedings could defeat Mr Wilcox's claim or produce a money judgment in Mr Cottrell's favour.

Jurisdiction
Australia
Judgment Date
07 March 2001
Procedural Posture
Appeal in Bankruptcy Proceedings; Motion for Stay of Proceedings Under a Judgment / Motion for Stay Pending Appeal From Conti J's Affirmance of a Sequestration Order
Outcome
The appellant's motion was dismissed.
Legal Topics
['stay Pending Appeal' 'sequestration Order' "creditor's Petition" 'abuse of Process' 'bankruptcy Notice' 'default Judgment' 'cross Claim or Cross Demand' 'going Behind Judgment']
['bankruptcy' 'civil Procedure' 'appeals'] ['stay Pending Appeal' 'sequestration Order' "creditor's Petition" 'abuse of Process' 'bankruptcy Notice' 'default Judgment' 'cross Claim or Cross Demand' 'going Behind Judgment']

Case Brief

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Procedural Posture

Appeal in Bankruptcy Proceedings; Motion for Stay of Proceedings Under a Judgment / Motion for Stay Pending Appeal From Conti J's Affirmance of a Sequestration Order

Legal Issues

  1. 1 ['Whether the appellant should be granted a stay of proceedings under a judgment pending appeal.' 'Whether any ground of appeal was arguable.' "Whether the creditor's petition involved an abuse of process or improper purpose within Rozenbes v Kronhill because of a cost sharing agreement with defendants in Victorian County Court proceedings." 'Whether circumstances surrounding the Wagga Wagga Local Court default judgment, including an asserted defence and cross-claim, provided an arguable basis to challenge the sequestration order.']

Ratio Decidendi

The motion for a stay was dismissed because Mr Cottrell failed to show any arguable appellable error in Conti J's decision affirming the sequestration order. There was no evidence supporting the Rozenbes categories of abuse of process, and no evidence that Mr Cottrell's asserted defence or cross-claim in the Wagga Wagga Local Court proceedings could defeat Mr Wilcox's claim or produce a money judgment in Mr Cottrell's favour.

Court Disposition

The appellant's motion was dismissed.

Orders

  • ["The appellant's motion be dismissed."]