Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Howell v Rose [2002] FCA 1196 BANKRUPTCY – Appeal against sequestration order – Agreement between parties to "stay of proceedings" pending trial of cross-claim by debtor against creditor – Whether this extended to bankruptcy proceedings – Authority of solicitor to make the agreement – Whether it is necessary for a substituted petitioning creditor to have obtained judgment in order to satisfy s 44(1)(a) of Bankruptcy Act 1966 –Whether debtor able to pay his debts – Whether other sufficient cause for not making a sequestration order – Need to value cross-claim. Bankruptcy Act 1966 ss 44(1)(a), 49, 52(2), (4), (5) PAUL ROCH HOWELL v JOHN EMMANUEL ROSE N1602 of 2001 WILCOX J 27 SEPTEMBER 2002 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N1602 of 2001
ON APPEAL FROM A JUDGMENT OF A FEDERAL MAGISTRATE OF THE
FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: PAUL ROCH HOWELL
APPELLANT
AND: JOHN EMMANUEL ROSE
RESPONDENT
JUDGE: WILCOX J
DATE OF ORDER: 27 SEPTEMBER 2002
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders made by Raphael FM on 19 November 2001 be set aside and, in lieu thereof, it be ordered that the petition be dismissed with costs. 3. The respondent, John Emmanuel Rose, pay the costs of the appeal of the appellant, Paul Roch Howell. 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 N1602 of 2001
ON APPEAL FROM A JUDGMENT OF A FEDERAL MAGISTRATE OF THE
FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: PAUL ROCH HOWELL
APPELLANT
AND: JOHN EMMANUEL ROSE
RESPONDENT
JUDGE: WILCOX J
DATE: 27 SEPTEMBER 2002
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