Cottrell v Wilcox [2001] FCA 866

FEDERAL COURT OF AUSTRALIA

Cottrell v Wilcox [2001] FCA 866 Federal Court of Australia Act 1976 (Cth) ss 35A(6), 51(1), 52 Bankruptcy Act 1966 (Cth) s 52(3) Maintenance, Champerty and Barratry Abolition Act 1993 (NSW) s 6 Federal Court Rules O 20 r 2, 18, 38 Bankruptcy Rules, s 19 Rozenbes v Kronhill (1956) 95 CLR 407 cited Martin v Commonwealth Bank [2001] FCA 87 applied Trendtex Trading Corporation v Credit Suisse [1982] AC 679 applied Martell v Consett Iron Co Ltd [1955] Ch 363 cited DAVID MERVYN COTTRELL v JOHN ALFRED WILCOX N 1476 OF 2000 SUNDBERG, EMMETT and FINKELSTEIN JJ 9 JULY 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1476 OF 2000

BETWEEN: DAVID MERVYN COTTRELL

APPELLANT

AND: JOHN ALFRED WILCOX

RESPONDENT

JUDGES: SUNDBERG, EMMETT and FINKELSTEIN JJ

DATE OF ORDER: 17 MAY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The notice of appeal be amended to add a further ground of appeal, namely

"18. That the learned judge failed to review the Registrar's decision of 29 November 2000 in the manner required by s 35A(6) of the Federal Court of Australia Act."

2. The respondent's motion notice of which was filed on 16 March 2001 be dismissed.

3. The appeal be dismissed.

4. The orders made by the primary judge be set aside.

5. The matter be remitted to the primary judge for further consideration in accordance with s 35A(6) of the Federal Court of Australia Act on the basis that there is no notice of opposition to the petition.

6. There be no order as to costs.

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 1476 OF 2000

BETWEEN: DAVID MERVYN COTTRELL

APPELLANT

AND: JOHN ALFRED WILCOX