FEDERAL COURT OF AUSTRALIA

Wilcox v French [2000] FCA 1460

GRAHAM MILTON WILCOX AND OTHERS v

JOHN DESMOND FRENCH

N 8095 of 1999

HILL J

10 OCTOBER 2000

SYDNEY

IN THE MATTER OF JOHN FRENCH

EX TEMPORE REASONS FOR JUDGMENT

1                     Before the Court is a motion by Mr French, a bankrupt, that a sequestration order made by Tamberlin J on 30 August 2000 be set aside and an order be made staying all applications.  In addition the motion seeks an extension of time in which the bankrupt can appeal against the making of a sequestration order.

2                     The substantive matter that the solicitor for the bankrupt wishes to agitate is whether, having regard to s 238 of the Bankruptcy Act 1966 (Cth), it was permissible for Tamberlin J to make a sequestration order on a petition when both the petition and an application to set aside a composition were heard at the same time.   The argument is that it was not competent on the part of the petitioning creditors to present a petition or proceed with it during such time as a valid composition was on foot.

3                     It seems to me that a proceeding by way of motion is misconceived.  The appropriate way in which the matter may be agitated by the bankrupt is by an appeal against the judgment of Tamberlin J.  It appears that an appeal has been lodged against his Honour’s judgment so far as it deals with setting aside the composition but not so far as it deals with the making of the sequestration order.

4                     Clearly it is appropriate that the matter which the bankrupt seeks to agitate be heard by a Full Court at the same time as that Full Court hears the appeal against the order of Tamberlin J setting aside the composition.  It is for that reason that I would extend the time for appeal against the sequestration order until 4.00 pm tomorrow to enable an appropriate notice of appeal to be filed.

5                     It would no doubt be competent for the bankrupt to bring an application to annul the sequestration order on the basis that it should not have been made, that is not the application made.  Further such an application should be made by filing an application and not a motion.  In any event it seems to me that the present is not really an appropriate case for an application for annulment.  I would accordingly, but subject to extending the time for the appeal, dismiss the motion with costs.

Associate:

Dated:              10 October 2000