Aztech Science Pty Ltd v Daevys

[2005] FCA 1828

FEDERAL COURT OF AUSTRALIA

Aztech Science Pty Ltd v Daevys [2005] FCA 1828

AZTECH SCIENCE PTY LTD v STUART DAEVYS
NSD 2307 of 2005

WILCOX J
13 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2307 of 2005

BETWEEN:	AZTECH SCIENCE PTY LTD APPLICANT
AND:	STUART DAEVYS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	13 DECEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 58(3)(b) of the Bankruptcy Act 1966 (Cth), leave is granted to the applicant to take fresh steps and continue with Supreme Court of New South Wales proceeding No 2187 of 2003.

2.For the purposes of order 1, leave to continue the said proceedings is deemed to have been granted on 2 March 2004.

3.        Each party pay its or his own costs.

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	NSD 2307 of 2005

BETWEEN:	AZTECH SCIENCE PTY LTD APPLICANT
AND:	STUART DAEVYS RESPONDENT

JUDGE:	WILCOX J
DATE:	13 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application seeking leave under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to take fresh steps and continue with Supreme Court proceedings that are already on foot. Section 58(3)(b) provides that, without leave of the Court, it is not competent for a creditor to commence any legal proceeding in respect of a provable debt or take any fresh steps in such proceeding.

2. In my opinion, this is a proper case for leave to be granted.  The need for the applicant to obtain leave is a rather technical matter arising out of the fact that the statement of claim, when filed, sought damages against the bankrupt.  That claim is no longer pressed, but it is probably correct to refer to the proceeding, in the words of the section, as a ‘legal proceeding in respect of a provable debt’. 

3. The relief now sought by the applicant is, apparently, that which is set out in the orders forecast in para 113 of the judgment of Basten JA in Aztech Science v Atlanta Aerospace (Woy Woy) [2005] NSW CA 319.  Those orders would not impinge on the bankrupt's estate. 

4. I propose to make orders in accordance with paragraphs 1, 2 and 3 of the application filed in this Court on 24 November 2005.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:
Dated:             16 December 2005

Counsel for the Applicant:	Mr J O’Sullivan
Solicitor for the Applicant:	McClellands
The Respondent appeared in person.
Date of Hearing:	13 December 2005
Date of Judgment:	13 December 2005