Day, in the matter of Gould v Gould [2000] FCA 1377

FEDERAL COURT OF AUSTRALIA

Day, in the matter of Gould v Gould [2000] FCA 1377 BANKRUPTCY – application for stay of sequestration order Bankruptcy Act 1966 (Cth) ss 37, 52, 153A Federal Court Rules, O 52 r 17 Coleman v Lazy Days Investments Pty Limited (1994) 55 FCR 297 considered Bayne v Blake (No 2) (1909) 9 CLR 360 referred to IN THE MATTER OF STEPHEN GOULD JULIAN DAY & ANOR v STEPHEN GOULD N 7178 OF 2000 EMMETT J 12 SEPTEMBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7178 OF 2000

IN THE MATTER OF STEPHEN GOULD

BETWEEN: JULIAN DAY

FIRST APPLICANT

ALAN MANLY

SECOND APPLICANT

AND: STEPHEN GOULD

RESPONDENT JUDGE: EMMETT J

DATE OF ORDER: 12 SEPTEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Proceedings under the sequestration order, other than the obligation arising under section 54 of the Bankruptcy Act 1966 (Cth), be stayed up to and including 5 October 2000. 2. The bankrupt file and serve, no later than 29 September 2000, detailed written submissions outlining his grounds of appeal and referring to all evidence before Conti J that will be relied upon in support of those grounds. 3. The bankrupt pay the petitioners' costs of today. 4. The motion for stay be stood over to 5 October 2000 at 10.15 a.m. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7178 OF 2000

IN THE MATTER OF STEPHEN GOULD

BETWEEN: JULIAN DAY

FIRST APPLICANT

ALAN MANLY

SECOND APPLICANT

AND: STEPHEN GOULD

RESPONDENT

JUDGE: EMMETT J

DATE: 12 SEPTEMBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 7 September 2000, Conti J made a sequestration order against the estate of Mr Stephen Gould. On the same day Mr Gould filed a motion seeking a stay of proceedings under the sequestration order pursuant to section 52(3) of the Bankruptcy Act 1966 (Cth) ("the Bankruptcy Act"). On the same day Mr Gould sent a facsimile communication to the Registrar of the Court indicating that he sought a stay until the hearing of an appeal against the order made by Conti J. 2 The matter came before me today as duty judge and argument proceeded on the basis that Mr Gould sought a stay of proceedings under the sequestration order; first to enable him to raise funds to pay the amount owing to the petitioning creditors; and secondly pending an appeal. 3 Section 52(3) of the Bankruptcy Act provides: "The Court may, if it thinks fit, upon such terms and conditions as it thinks proper, stay all proceedings under a sequestration order for a period not exceeding 21 days." That provision must be understood in the context of section 37 of the Bankruptcy Act which provides as follows: "37 (1) Subject to subsection (2), the Court may rescind, vary or discharge an order made by it under this Act or may suspend the operation of such an order. (2) The Court does not have power to rescind or discharge, or to suspend the operation of: