Bagshaw v Scott [2002] FCAFC 362

FEDERAL COURT OF AUSTRALIA

Bagshaw v Scott [2002] FCAFC 362 Bankruptcy – Appeal by bankrupts concerning the decision of the primary judge that property which vested in the bankrupts' trustees was charged to secure borrowing made by bankrupts – Appeal dismissed as incompetent under O 52 r 18 Federal Court Rules. Bankruptcy Act 1966 (Cth) ss 5(1), 58(1), 58(2), 149, 149B Federal Court Rules O 52 rr14(2), 18 McMahon v Livingstone [2001] NSWSC 55 referred to Cummings v Claremont Petroleum NL (1996) 185 CLR 124 discussed and applied Boaler v Power [1910] 2 KB 229 referred to and discussed W R Henry & Son v Hodge [1963] VR 111 referred to Motion v Moojen (1872) LR 14 Eq 202 referred to Rochfort v Battersby (1849) 2 HLC 388; 9 ER 1139 referred to Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 referred to McCallum v Commissioner of Taxation (1997) 75 FCR 458 at 474 discussed Guirguis v Guirguis (1997) 137 FLR 130 discussed Leith Gordon Bagshaw & Anor v John Joseph Scott & Ors N 244 of 2002 MANSFIELD, CONTI & ALLSOP JJ 6 DECEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 244 of 2002

ONAPPEALFROMASINGLEJUDGEOFTHEFEDERALCOURTOF AUSTRALIA

BETWEEN: LEITH GORDON BAGSHAW & JUDITH HAMPTON BAGSHAW

APPELLANTS

AND: JOHN JOSEPH SCOTT

FIRST RESPONDENT

PHILLIP GREGORY JEFFERSON & JAY ARSCOTT STEVENSON AS TRUSTEES OF THE BANKRUPT ESTATE OF LEITH GORDON BAGSHAW

SECOND RESPONDENTS

JUDGE: MANSFIELD, CONTI & ALLSOP JJ

DATE OF ORDER: 6 DECEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal of Leith Gordon Bagshaw and Judith Hampton Bagshaw be dismissed as incompetent. 2. The appellants pay the costs of the respondent John Joseph Scott. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.