Wilcox v Cottrell [2001] FCA 1357

FEDERAL COURT OF AUSTRALIA

Wilcox v Cottrell [2001] FCA 1357

BANKRUPTCY – earlier sequestration order made by Registrar for non-compliance with bankruptcy notice based on court judgment – application of bankrupt to set aside sequestration order on ground of abuse of process referrable to champertous agreement – application dismissed at first instance by primary judge – bankrupt appealed to Full Court – Full Court rejected stated grounds of appeal but remitted to primary judge for review and hearing de novo proceedings for bankruptcy earlier purportedly determined by Registrar – finding of act of bankruptcy by reason of failure to comply with act of bankruptcy committed within six months before presentation of petition – only defect in documentation formal and no substantial injustice occasioned thereby – debtor had belatedly moved beforehand to set aside court judgment upon which bankruptcy notice based – absence of evidence of likelihood of debtor being able to set aside court judgment – absence of sufficient cause for sequestration order not to be made.

Bankruptcy Act 1966 (Cth) ss 52(1), 52(4) Federal Court Rules O 77 r 19 Australia and New Zealand Banking Group Ltd v Prestia [2001] FCA 792 followed Cottrell v Wilcox [2001] FCA 866 referred to Daly v Watson (1994) 50 FCR 544 followed Martin v Commonwealth Bank of Australia [2001] FCA 87 referred to JOHN ALFRED WILCOX v DAVID MERVYN COTTRELL N 7880 OF 2000 CONTI J 21 SEPTEMBER 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7880 OF 2000

BETWEEN: JOHN ALFRED WILCOX

APPLICANT

AND: DAVID MERVYN COTTRELL

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 21 SEPTEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. A sequestration order be made against the estate of the Respondent. 2. The Respondent to pay the costs of the Applicant of the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.