Du Bray v ACW [2020] FCA 1142

Du Bray v ACW [2020] FCA 1142

The stay application was dismissed because, although the appeal was accepted as reasonably arguable for the purposes of the application, its prospects were weak and the balance of convenience did not favour a stay. Mr Du Bray did not provide sufficient evidence that refusal of a stay would materially prejudice his Family Court appeal, and a stay of proceedings under the sequestration order would not alter his status as an undischarged bankrupt or avoid any disqualification from managing corporations. His unpaid costs orders also weighed against a stay in the exercise of discretion.

Jurisdiction
Australia
Judgment Date
03 August 2020
Procedural Posture
Appeal From Sequestration Order; Interlocutory Application for Stay of Proceedings Under Sequestration Order / Interlocutory Application Pending Appeal
Outcome
Application dismissed with costs, subject to leave to apply for reconsideration of the costs order.
Legal Topics
['stay of Proceedings Under Sequestration Order' 'sequestration Order' 'appeal Prospects' 'balance of Convenience' "verification of Creditor's Petition" 'disqualification of Bankrupt From Managing Corporations']
['bankruptcy and Insolvency' 'corporations and Corporate Insolvency'] ['stay of Proceedings Under Sequestration Order' 'sequestration Order' 'appeal Prospects' 'balance of Convenience' "verification of Creditor's Petition" 'disqualification of Bankrupt From Managing Corporations']

Case Brief

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Procedural Posture

Appeal From Sequestration Order; Interlocutory Application for Stay of Proceedings Under Sequestration Order / Interlocutory Application Pending Appeal

Legal Issues

  1. 1 ['Whether proceedings under the sequestration order should be stayed pending the hearing and determination of the appeal under r 36.08(2) of the Federal Court Rules 2011 (Cth).' "Whether the appeal had an arguable point or rational prospect of success concerning verification of the creditor's petition under s 47(1) of the Bankruptcy Act 1966 (Cth)." 'Whether the balance of convenience favoured a stay, including asserted prejudice to Family Court appeal funding and corporate directorships.' "Whether a stay of proceedings under a sequestration order would affect the appellant's status as an undischarged bankrupt or disqualification from managing corporations."]

Ratio Decidendi

The stay application was dismissed because, although the appeal was accepted as reasonably arguable for the purposes of the application, its prospects were weak and the balance of convenience did not favour a stay. Mr Du Bray did not provide sufficient evidence that refusal of a stay would materially prejudice his Family Court appeal, and a stay of proceedings under the sequestration order would not alter his status as an undischarged bankrupt or avoid any disqualification from managing corporations. His unpaid costs orders also weighed against a stay in the exercise of discretion.

Court Disposition

Application dismissed with costs, subject to leave to apply for reconsideration of the costs order.

Orders

  • ["The appellant's interim application filed on 23 July 2020, as amended orally on 3 August 2020, is dismissed." "The appellant is to pay the respondent's costs of the application." 'The parties are given leave to apply for the reconsideration of order 2 by filing written submissions (of no more than three pages)...