Bhattacharya v Milne Berry and Berger

[1999] FCA 1373

FEDERAL COURT OF AUSTRALIA

Bhattacharya v Milne Berry & Berger [1999] FCA 1373

BANKRUPTCY – application for a stay of orders.

PRANAY KUMAR BHATTACHARYA V VICTOR BERGER & HARRY NORMAN FREEDMAN (TRADING AS MILNE BERRY & BERGER)

N 660 OF 1999

JUDGE:         BEAUMONT J.
DATE:           21 SEPTEMBER 1999
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 660 OF 1999

BETWEEN:	PRANAY KUMAR BHATTACHARYA Appellant
AND:	VICTOR BERGER & HARRY NORMAN FREEDMAN (TRADING AS MILNE BERRY & BERGER) Respondent
JUDGE:	BEAUMONT J.
DATE OF ORDER:	21 SEPTEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of motion is dismissed, with 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	N 660 OF 1999

BETWEEN:	PRANAY KUMAR BHATTACHARYA Appellant
AND:	VICTOR BERGER & HARRY NORMAN FREEDMAN (TRADING AS MILNE BERRY & BERGER) Respondent

JUDGE:	BEAUMONT J.
DATE:	21 SEPTEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1. Before the Court is a notice of motion seeking two orders.  The first is that the order of the Full Court (dismissing the appeal from the judgment of Einfeld J, who dismissed an application to set aside a bankruptcy notice) be stayed.  The second order sought in the notice of motion is a declaratory order that the appellant cannot be made bankrupt in certain circumstances.

2. As I have already indicated to the appellant (who appears in person) the second order sought is not within the competency or jurisdiction of this Court and I propose to say no more about it. 

3. As to the first order, the application for a stay, again, as I have indicated in the course of argument, I would interpret this as an application, in substance if not in form, for a temporary order restraining the presentation of a petition based upon non-compliance with the subject bankruptcy notice until the High Court of Australia deals with the application for special leave to appeal lodged by the appellant.

4. In support of the notice of motion, the appellant relies upon his affidavit sworn on 15 September 1999.  That affidavit seeks to canvass a number of the matters agitated before the Full Court, but there is nothing there specified, and there is nothing in the oral argument presented by the appellant today, which would justify my concluding that the appellant has shown, at least, an arguable prospect of obtaining special leave from the High Court.  I do not, in the circumstances, propose to place much reliance for present purposes on that aspect.

5. I am prepared to assume, in the appellant’s favour, that he may have some arguable prospect of obtaining special leave.  Even on that assumption, I am of the view that, in the exercise of my discretion, it would not be appropriate to grant a stay at this stage.  The appellant has informed the Court that he has no assets, and no liabilities other than the amount claimed to be due to the respondent.  As things stand, in this Court at least, the position has been reached where the appellant has failed either to set aside the bankruptcy notice or to establish that he has complied with it by pointing to the existence of a cross-demand of the requisite kind.

6. It follows, again so far as this Court is concerned, that the appellant will have committed an act of bankruptcy if he fails to comply with the requirements of the bankruptcy notice within the requisite time.  That is a matter for the appellant.  Even if he does not comply with the notice, and even if an act of bankruptcy is in those circumstances committed, it does not follow inevitably that a petition for the sequestration of his estate will be brought, and will be brought successfully, to a conclusion.

7. On the hearing of such a petition, the Court has an undoubted discretion in the matter generally conferred by the statute, and, no doubt, the appellant will then seek to rely upon, inter alia, the matters he has sought to propound in his affidavit sworn 15 September 1999.  There is no suggestion, in the evidence before me, that any creditor other than the respondent is likely to seek to move against the appellant for the sequestration of his estate in bankruptcy.  That being so, having regard to all the circumstances, I propose to refuse the application for the stay sought. 

8. The formal order of the Court is that in the matter, the motion dated 15 September 1999 is dismissed.

   ORDERS

9. The notice of motion is dismissed, with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:             21 September 1999

Solicitor for the Applicant:	Mr Bhattacharya appeared in person
Solicitor for the Respondent:	Milne Berry & Berger
Date of Hearing:	21 September 1999
Date of Judgment:	21 September 1999