FEDERAL COURT OF AUSTRALIA Griffiths v Boral Resources (Qld) Pty Ltd [2005] FCA 1243 DAVID JAMES GRIFFITHS v BORAL RESOURCES (QLD) PTY LTD QUD 311 OF 2005 DOWSETT J 2 SEPTEMBER 2005 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 311 OF 2005 BETWEEN: DAVID JAMES GRIFFITHS APPLICANT AND: BORAL RESOURCES (QLD) PTY LTD RESPONDENT JUDGE: DOWSETT J DATE OF ORDER: 2 SEPTEMBER 2005 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application for a stay be refused. 2. The applicant pay the respondent's costs of the application Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 311 OF 2005 BETWEEN: DAVID JAMES GRIFFITHS APPLICANT AND: BORAL RESOURCES (QLD) PTY LTD RESPONDENT JUDGE: DOWSETT J DATE: 2 SEPTEMBER 2005 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This is an application to stay a sequestration order pending appeal. There may well be an arguable ground of appeal, although success may depend upon a re-examination of the decision of the Full Court in Elyard Corporation v DBB Needham Sydney (1995) 133 ALR 206 and, more particularly, cases which have purported to apply that decision to bankruptcy matters. In any event, I am willing to proceed upon the basis that the applicant has identified an arguable ground of appeal. 2 The question that arises is whether there is a significant risk that in the absence of a stay, the applicant will be disadvantaged in the event of a successful appeal. As far as I can see, if there is no stay, the administration of the estate in bankruptcy will continue. The applicant says that he wishes to seek leave to appeal in the Court of Appeal from the District Court decision upon which the bankruptcy notice, and eventually, the sequestration order were based. However that decision was given almost two years ago and, from what he has said to me, the prospects of an extension of time in which to appeal are not substantial. The applicant claims to have obtained additional evidence, but there is no explanation as to why such evidence was not led before Forno DCJ at first instance. Further, it seems that the matter in issue (which relates to a possible counter-claim against the judgment creditor) was investigated before the Federal Magistrate in the hearing of the petition and was decided against the applicant. In those circumstances, I am inclined to the view that the prospects of his successfully resisting the petition, in the event that he is successful on appeal, would be negligible. I consider that the interests of the parties and the public interest would be better served by letting the bankruptcy proceed. No doubt, the Trustee will take into account the observations which I have made concerning the merits of the ground of appeal against the sequestration order and will temper his conduct in the administration accordingly. 3 The application for a stay will be refused. I order that the applicant pay the respondent's costs of the application. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 6 September 2005 Counsel for the Applicant: The Applicant appeared in person. Counsel for the Respondent: Mr S Cooper Solicitor for the Respondent: James Conomos Lawyers Date of Hearing: 2 September 2005 Date of Judgment: 2 September 2005