Re: Nolan; Ex Parte: Sergeant v Nolan [1995] FCA 226

JUDGMENT No, suc 2& conf wut Se

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FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NX 191 of 1993

GENERAL DIVISION )

RE: JEREMY WILLIAM MARDEN NOLAN Debtor

BETWEEN:

DAVID LLEWELLYN SERGEANT Applicant

AND:

JEREMY WILLIAM MARDEN NOLAN

Respondent CORAM: § SACKVILLE J. PLACE: SYDNEY DATE: TUESDAY, 4 APRIL, 1995 PEE COURT OF

PRINCIPAL

REGISTRY

HIS HONOUR: I grant leave to Mr Harper, for the respondent, to file in court a notice of motion. The notice of motion is undated, but will have today's date inserted as the return date. An affidavit of Dermot John Maxwell sworn 4 April 1995 in support

of that notice of motion will also be filed in Court.

The notice of motion, as amended in the manner proposed by Mr Harper, seeks a stay of all declarations and orders made by me in the judgment that I delivered in these proceedings on 14 March 1995. The affidavit in support of Mr Maxwell simply annexes a

notice of appeal from that judgment.

In my view, it is not appropriate to deal with the motion on the

v

~2- basis of the debtor's prospects of success in the appeal. [ cannot conclude that the appeal is without prospects of success. Mx Harper has submitted that, in these circumstances, a stay ought to be granted, since the effect of a refusal to grant a stay would be the making of a sequestration order. Although the sequestration order could be set aside in the event of a successful appeal, the reality is that the sequestration order would be effective for the period between the date of lifting of the stay and the date the successful appeal is determined. Accordingly, I think there is force in Mr Harper's submission that, subject to other matters, a refusal to grant a stay would

render the appeal nugatory.

I interpose that it is, perhaps, a pity that the resources that have gone into the conduct of this case and that are proposed to be invested in the appeal could not have been directed to the satisfaction of the undisputed debts due by the debtor to his creditors and, in particular, to the applicant in the present proceedings. The hearing before me took some four days and no doubt involved very considerable expense to the parties. An appeal will involve yet further expense. The debt, although no doubt considerably greater than the cost of the proceedings, nevertheless might have been significantly reduced by the resources that have been required to conduct these proceedings.