FEDERAL COURT OF AUSTRALIA

Mead v Mead [2009] FCA 1552

LUCY GUITAR MEAD v COLIN ANTHONY MEAD

NSD 1445 of 2009

LEE CHIN LIEN YANG v COLIN ANTHONY MEAD

NSD 1447 of 2009

COWDROY J

17 DECEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                   The Notice of Motion dated 17 December 2009 be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

THE COURT ORDERS THAT:

1.          1.  The Notice of Motion dated 17 December 2009 be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     Before the Court, in matter number NSD 1445 of 2009, is a Notice of Motion instituted by the Ms Lucy Guitar Mead (‘the appellant’) seeking to stay the sequestration order made against her by Federal Magistrate Driver on 30 November 2009. In matter number NSD 1447 of 2009 the same relief is sought by Ms Lee Chin Lien Yang, who is the mother of the appellant (together the ‘appellants’). Since both matters arise out of identical circumstances the Court will issue one judgment in respect of both matters.

2                     These proceedings have a long history. It appears that a default judgment was made in the District Court of New South Wales against the appellants on 24 April 2002. A Bankruptcy Notice was issued based upon the default judgment on 6 March 2008. A challenge was made against the validity of the Bankruptcy Notice by the appellants. That was heard before Flick J on 26 October 2009. I should add that Flick J dealt with that matter in reviewing an earlier decision by a Registrar who dismissed the Application to set aside the Bankruptcy Notice on 15 July 2009.

3                     On 19 November 2009 the appellants filed an appeal against the decision of Flick J who was exercising the jurisdiction of the Full Court. The appeal, accordingly, is made to the High Court of Australia. That matter is pending. A Creditor’s Petition was issued against the appellants on 17 July 2009. The Petition was opposed and the proceedings came before Driver FM in the Federal Magistrates Court of Australia. Having heard the argument of both parties the Federal Magistrate made the order of sequestration on 30 November 2009. Today, 17 December 2009, an appeal has been lodged to this Court against the making of the sequestration order.

4                     Accordingly, the appellant has two proceedings on foot in relation to the present bankruptcy. That is, a challenge to the validity of the Bankruptcy Notice which led to the Petition being issued, that matter being before the High Court. And secondly, a challenge to the validity of the Petition in respect of which an appeal is being brought to this Court.

5                     The Application before the Court today is supported by an affidavit of each appellant, the affidavits being in similar terms. It reveals a complex statement of fact which is difficult to follow but the Court understands that, in effect, the appellant seeks to challenge the very basis upon which the Bankruptcy Notice was issued and also challenges other proceedings which are not relevant for present purposes. The Appellant has informed the Court that she wishes to have the sequestration order stayed for 12 months to enable her to, it appears, proceed against her former husband who was the Petitioning Creditor.

6                     The appellant has referred to several sections of the Bankruptcy Act 1966 (Cth) as the basis for the stay. The Bankruptcy Act does enable the court by virtue of s 37 to rescind, vary or discharge an order made by it under the Bankruptcy Act: see s 37(1). However, there is a fundamental obstacle to the appellants’ Notices of Motion and that is because of the existence of s 37(2). Such section provides that the Court does not have power to rescind or discharge or to suspend the operation of (a) a sequestration order or (b) an order for the administration of the estate of a deceased person under Part XI.

7                     Accordingly, the Notices of Motion before me must fail. The appellant seeks to stay, that is, to have the same effect of suspending the operation of the sequestration order. The Court has no power to grant such stay. The only way the appellant can achieve the results she wishes is if she is able to satisfy the Court on her appeal either to the High Court or to the Federal Court in her current appeals that her case is valid. For this reason the Court dismisses the Notice of Motion in each case.

Associate:

Dated:         17 December 2009