Westpac Banking Corporation v Carver, in the matter of Carver [2003] FCA 221

Westpac Banking Corporation v Carver, in the matter of Carver [2003] FCA 221

The respondent debtor must show not only that the application for special leave to appeal is genuine, but that there are arguable grounds for concluding that special leave will be granted, given the provisions of s 35A of the Judiciary Act and additional relevant factors. The court's discretion to adjourn is not simply fettered by existence of a genuine appeal but requires a demonstrated likelihood that special leave will be granted.

Jurisdiction
Australia
Judgment Date
27 February 2003
Procedural Posture
Bankruptcy Petition / Determination of Preliminary Question Regarding Stay of Sequestration Order
Outcome
Preliminary question determined; criteria clarified for granting stay of sequestration order pending special leave application.
Legal Topics
['stay of Sequestration Order' 'special Leave Application to High Court' 'bankruptcy Proceedings Pending Appeal']
['bankruptcy'] ['stay of Sequestration Order' 'special Leave Application to High Court' 'bankruptcy Proceedings Pending Appeal']

Case Brief

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Procedural Posture

Bankruptcy Petition / Determination of Preliminary Question Regarding Stay of Sequestration Order

Legal Issues

  1. 1 ['Whether the Federal Court should stay a sequestration order pending an application for special leave to appeal to the High Court' 'What factors must the respondent debtor demonstrate to warrant an adjournment of bankruptcy proceedings']

Ratio Decidendi

The respondent debtor must show not only that the application for special leave to appeal is genuine, but that there are arguable grounds for concluding that special leave will be granted, given the provisions of s 35A of the Judiciary Act and additional relevant factors. The court's discretion to adjourn is not simply fettered by existence of a genuine appeal but requires a demonstrated likelihood that special leave will be granted.

Court Disposition

Preliminary question determined; criteria clarified for granting stay of sequestration order pending special leave application.

Orders

  • []