Barton, Thomas Ex Parte Corporate Affairs Commission - [1980] FCA 213

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION

BANKRUPTCY DISTRICT

OF THE STATE

No. NSW 310 of 1974

NEW SOUTH WALES AND	THE AUSTRALIAN
CAPITAL TERRITORY

IN THE MATTER OF

AN APPLICATION UNDER SECTION 58 (3) FOR LEAVE TO INTERVENE IN APPLICATION BY BANKRUPT

FOR DISCHARGE

THOMAS BARTON

AND IN THE MATTER

THOMAS BARTON

EX PARTE CORPORATE AFFAIRS

COMMISSION, CORPORATE MINING INVESTMENTS OF AUSTRALIA (IN LIQUIDATION)

AND IN THE MATTER

THOMAS BARTON

EX PARTE CORPORATE AFFAIRS

COMMISSION, MULKANA CORPORATIl

N.L. (IN LIQUIDATION)

AND IN THE MATTER

THOMAS BARTON

EX PARTE CORPORATE AFFAIRS

COMMISSION, MURUMBA OIL N.L.

(IN LIQUIDATION)

AND IN THE MATTER

THOMAS BARTON

EX PARTE CORPORATE AFFAIRS

COMMISSION, BOUNTY OIL LIMITE:

(IN LIQUIDATION)

. .

. / 2

-2-

AND IN THE MATTER OF

THOMAS BARTON

AND IN THE MATTER OF

THOMAS BARTON

-.	EX PARTE BANK OF NEW SOUTH WALES

REASONS FOR

JUDGMENT

6 June I980

LOCKHART J.

The applicants, Murumba Oil

N.L. (In Liquidation) -

( llMurwnball), Mulkana Corporation

N.L. (In Liquidation) - ( IfMulkana'

Corporate Mining Investments

of Australia (In Liquidation) -

(f1C.M.

l ! ) ,

Intercontinental Properties

Pty. Limited (In

Liquidation) - (llIntercontinentalll), Bounty Oil Limited

(In

Liquidation) - ("Bounty Oilt1)

and Corporate Affairs Commission

- ("the Commissiont1) are seeking the leave

of this Court nunc pro

tunc, to the extent that such leave may

be necessary, to commence

certain proceedings

in the Supreme Court

of New South Wales

Equity Division, and

to take all such steps as have been taken

to date and as

it may hereinafter be reasonable

for them to take

in the future conduct of those

proceedings.

The applications are made under sub-section

58 (3) of

the Bankruptcy Act

1966 - ("the Act").

They ,are

opposed by the

bankrupt. Counsel for the bankrupt

has informed me that on his

. ./3

-3-

instructions he is

unable to make submissions

on the substantive

matters involved in the application.

The Official Receiver

neither supports nor opposes the applications. He submits to

whatever order the Court sees

fit to make.

Each of the applicants Murumba, Mulkana,

C.M.I. and

Intercontinental instituted separate proceedings

in the Supreme

Court of New South Wales

on 29 July 1977.

Defences have been filed and counter-claims brought

by some of the defendants. Bounty instituted its proceedings

on 28 December 1979. The statement

of claim has been filed

but

not yet served on the defendants. The Commission

is a co-plaintif

in each proceeding pursuant to section	367B of the Companies Act
1961 (N.S.W.).

All proceedings are against the bankrupt and others

defendants. The Attorney-General for the State

of New South Wales

has caused each of the proceedings to be instituted

in th name

of the particular company as plaintiff, pursuant to sub-section

178 (9) of the Companies Act

1961.

It is not necessary to describe the proceedings

in any

detail. It is

sufficient to say that the causes

of action in

the proceedings in which the plaintiffs are Murumba,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Barton, Thomas Ex Parte Corporate Affairs Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1980] FCA 213
Decision Date: 6 Jun 1980

CaseChat Overview and Summary

The applicants, including Murumba Oil N.L. (In Liquidation), Mulkana Corporation N.L. (In Liquidation), Corporate Mining Investments of Australia (In Liquidation), Intercontinental Properties Pty. Limited (In Liquidation), Bounty Oil Limited (In Liquidation), and the Corporate Affairs Commission, sought leave to commence proceedings against the bankrupt, Thomas Barton, in the Supreme Court of New South Wales, Equity Division. The bankrupt opposed the applications. The primary legal issue before the court was whether the leave sought under sub-section 58(3) of the Bankruptcy Act 1966 could be granted nunc pro tunc, despite the fact that the sequestration order preceded the commencement of the proceedings. The applicants argued that the leave should be granted nunc pro tunc because it would be impractical and futile to determine whether leave was necessary given the complex and far-reaching ramifications of the proceedings.

The court considered the established principle that leave nunc pro tunc could be granted by the court in cases of winding up of companies, as well as in cases under the Bankruptcy Act. The court concluded that the language in sub-section 58(3) should be construed in the same way as the analogous sections in companies legislation and earlier bankruptcy legislation. The court found that the applications for leave should be granted, as it would be impractical to determine the necessity of leave in the context of such complex proceedings.

The court granted the applications for leave nunc pro tunc, allowing the applicants to proceed with the proceedings against the bankrupt in the Supreme Court of New South Wales, Equity Division.

Orders