Freeman v National Australia Bank Ltd [2002] FCA 427

FEDERAL COURT OF AUSTRALIA

Freeman v National Australia Bank Ltd [2002] FCA 427 BANKRUPTCY – motion for a stay of a sequestration order until the appeal against the sequestration order is heard – competence of the Court to stay all proceedings under a sequestration order pursuant to O 52 r 17 Federal Court Rules – whether there is an arguable point on the proposed appeal – whether the balance of convenience favours the granting of a stay – whether a claim by the bankrupt in respect of default in the sale of property by the Receiver is against the Receiver or the petitioning creditor who appointed the Receiver Bankruptcy Act 1966 (Cth), ss 52, 178, 5(1), 58(1)(a), 116(1) Federal Court of Australia Act 1976 (Cth), s 24 Federal Court Rules, O 52 r 17 Coleman v Lazy Days Investment Pty Ltd (1994) 55 FCR 297, approved Evans v The Heather Thiedeke Group Pty Ltd (1990) 95 ALR 424, approved Commonwealth Bank of Australia v Muirhead [1997] 1 Qd R 567, considered Cummings v Claremont Petroleum NL (1995-1996) 185 CLR 124, applied LYNTON NOEL CHARLES FREEMAN v NATIONAL AUSTRALIA BANK LIMITED No Q 44 of 2002 SPENDER J BRISBANE 9 APRIL 2002

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 44 OF 2002

BETWEEN: LYNTON NOEL CHARLES FREEMAN

APPLICANT

AND: NATIONAL AUSTRALIA BANK LIMITED

RESPONDENT

JUDGE: SPENDER J

DATE OF ORDER: 9 APRIL 2002

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: (1) Proceedings under the sequestration order made on 12 March 2002 against Lynton Noel Charles Freeman be stayed until the determination of Mr Freeman's appeal from the order making that sequestration order or earlier order. (2) The applicant prepare and file his statement of affairs within fourteen days of today. (3) The stay of proceedings under the sequestration order continue only whilst the appeal against the making of the sequestration order is prosecuted with due expedition and diligence. (4) There be liberty to apply to each party on three days notice. (5) There be no order in respect of the costs of the Trustee concerning today's motion. Otherwise, the costs of the motion be costs in the appeal.