2000 Olympic Games Pty Ltd v Daly

[2000] FCA 1286

FEDERAL COURT OF AUSTRALIA

2000 Olympic Games Pty Ltd v Daly [2000] FCA 1286

BANKRUPTCY – circumstances in which it was appropriate to substitute a petitioning creditor.

Re Buckley; Ex parte James Hardie & Co Pty Ltd (1976) 27 FLR 496 referred to

2000 OLYMPIC GAMES PTY LIMITED v TERENCE JOHN DALY; EX PARTE DRUIN PTY LIMITED

N 8324 of 1999

BURCHETT J
6 SEPTEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 8324 of 1999

BETWEEN:	2000 OLYMPIC GAMES PTY LIMITED Applicant
AND:	TERENCE JOHN DALY Respondent
EX PARTE:	DRUIN PTY LIMITED
JUDGE:	BURCHETT J
DATE OF ORDER:	6 SEPTEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

(1)The proposed substituted petitioning creditor be substituted;

(2)Costs be costs in the petition.

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	N 8324 of 1999

BETWEEN:	2000 OLYMPIC GAMES PTY LIMITED Applicant
AND:	TERENCE JOHN DALY Respondent

EX PARTE:                   DRUIN PTY LIMITED

JUDGE:	BURCHETT J
DATE:	6 SEPTEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BURCHETT J

1. In this matter, an application has been made to substitute a creditor as petitioner.  The petition is not on the most common ground of non-compliance with a bankruptcy notice, but is on the ground contained in s 40(1)(i).  I am told that reliance is also placed on paragraphs (j) and (l), but particularly the ground is (i) – “if he or she signs an authority under section 188.”

2. The question which has been raised in the petition, in which a large sum of money is alleged to be owing to the petitioning creditor, but not under a judgment, is whether that sum of money or any of it is actually owed.  An aspect of the dispute about that is whether there is a set off, and if so for how much, which the debtor is entitled to rely on.  Rather than pursue this dispute, there being no question as to the act of bankruptcy, what Mr Condon (who appears both for the present petitioning creditor and also for the applicant for substitution) contends is that he should be permitted to substitute a petitioner who has a debt which is the subject of a judgment, and is not in dispute.

3. One ground of opposition is raised. The debtor says that where the existing petition is opposed on the ground that there is no debt, or no debt falling within terms of s 44(1) of the Bankruptcy Act1966 (Cth), an order for substitution should not be made without requiring proof that, in fact, the petitioning creditor is, or at least at the time of the institution of the proceeding was, entitled to such a debt.

4. I think the authorities are clear that it cannot be right to say the substitution can only be made where there is such a debt, because in numerous cases courts have made orders substituting a…