Gould v Day [2000] FCA 1560

FEDERAL COURT OF AUSTRALIA

Gould v Day [2000] FCA 1560

STEPHEN GOULD v JULIAN DAY & ALAN MANLY N 978 OF 2000 JUDGES: WHITLAM, BRANSON & STONE JJ DATE: 27 OCTOBER 2000 WHERE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 978 OF 2000

BETWEEN: Stephen Gould

APPELLANT

AND: JULIAN DAY and

ALAN MANLY

RESPONDENTS

JUDGES: Whitlam, branson & stone JJ

DATE OF ORDER: 27 OCTOBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Leave be granted to appeal from the judgment of Emmett J given on 5 October 2000. 2. Orders 2 and 4 made by Emmett J on 5 October 2000, as varied by Branson J on 19 October 2000, be set aside. 3. The appeal be otherwise dismissed. 4. Costs of the leave application be costs in the appeal. 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 978 OF 2000

BETWEEN: Stephen Gould

APPELLANT

AND: JULIAN DAY and

ALAN MANLY

RESPONDENTS

JUDGES: Whitlam, branson & stone JJ

DATE: 27 OCTOBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT WHITLAM J 1 This is an application for leave to appeal from a judgment of Emmett J staying proceedings under a sequestration order, which was made against the appellant's estate by Conti J on 7 September 2000. The appeal from the sequestration order was instituted the day after it was made. 2 The stay was granted on terms that the appellant provide security for costs of the appeal and that, if such security was not provided on or before 19 October 2000, the appeal was to be dismissed. The present motion came before Branson J, who extended until the end of today the time within which security was to be given. Her Honour then referred the leave application for hearing today by a Full Court. 3 We have now heard argument from the appellant on the application for leave to appeal and on the appeal from Emmett J. There may be a question whether a single Judge can exercise the appellate jurisdiction of the Court to grant a stay of judgment pending an appeal, although there would seem little doubt that a single Judge may exercise such jurisdiction to require security for costs of an appeal. Be that as it may, having heard everything urged by the appellant in support of an unconditional stay, I am firmly of the opinion that this is not a case where a stay should be granted. 4 Emmett J thought that the appeal enjoyed no "real prospect" of success. An unusual feature of the case is that security for costs of the appeal was not sought by the respondents. The appellant is not able to provide such security. It is not clear that, had he realized the terms upon which a stay would be granted, he would have pressed for a stay. Faced with the choice now between not having a stay at all and having a stay on the terms granted by Emmett J, he would prefer to lose the stay and to be able to pursue his appeal. The respondents do not oppose that result. 5 In the unusual circumstances of this case I propose, therefore, that leave to appeal be granted and the appeal be allowed to the extent of setting aside orders 2 and 4 made by Emmett J on 5 October 2000. The effect of what I propose is that security for costs of the appeal will not be required and that the stay of proceedings under the sequestration order will expire at midnight tonight. BRANSON J 6 In my view this is not an appropriate case for consideration to be given to the jurisdiction of the Court to grant a stay of proceedings under a sequestration order. In my view, having regard to the findings of Emmett J, no reason to disturb which has been shown today, this was plainly not a case for an unconditional stay. In the circumstances, it seems to me that Mr Gould should have been given a choice as to whether to take a stay on conditions or to withdraw his application. The appropriate orders today are, in my view, the orders proposed by Whitlam J. STONE J 7 I agree with the orders proposed by Whitlam and Branson JJ and I also agree with the reasons that Whitlam J has given for those orders. WHITLAM J 8 The orders of the Court are: (1) Leave is granted to appeal from the judgment of Emmett J given on 5 October 2000. (2) Orders 2 and 4 made by Emmett J on 5 October 2000, as varied by Branson J on 19 October 2000, are set aside. (3) The appeal is otherwise dismissed. [There was discussion about costs]