Australia and New Zealand Banking Group Limited v James (No 3) [2021] FCA 788

Federal Court of Australia

Australia and New Zealand Banking Group Limited v James (No 3) [2021] FCA 788 File number(s): NSD 873 of 2020

Judgment of: CHEESEMAN J

Date of judgment: 12 July 2021

Catchwords: BANKRUPTCY – creditor's petition – whether preconditions on the exercise of the discretion to make a sequestration order are satisfied – respondent debtor opposes creditor's petition in circumstances where the amended notice of grounds of opposition to the creditor's petition was withdrawn during the course of proceedings – consideration of discretion to exercise power to make a sequestration order under s 52(1) of the Bankruptcy Act 1966 (Cth) - Held: sequestration order made BANKRUPTCY – By consent, the parties sought orders seeking a stay of the "operation of" the sequestration order – no power to make such an order, s 37(2) of the Bankruptcy Act – premature and speculative to consider making a stay order other than under s 52(3) in circumstances where no application for leave to appeal or appeal proper has been formulated – Held: parties to bring in order conformable with the power under s 52(3) to stay all proceedings under the sequestration order for a period not exceeding 21 days

Legislation: Bankruptcy Act 1966 (Cth), ss 37(2)(a), 52 Federal Court Rules 2011 (Cth), r 36.08

Cases cited: Australia and New Zealand Banking Group Limited v James [2021] FCA 768 Bechara v Bates [2021] FCAFC 34 Endresz v Australian Securities and Investments Commission [2014] FCA 1139 Endresz v Australian Securities and Investments Commission (No 2) [2015] FCAFC 33; (2015) 228 FCR 334 Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; (2017) 261 CLR 132 Totev v Sfar [2008] FCAFC 35; (2008) 167 FCR 193