Cooper v Lorenzin

[2012] FCA 76

FEDERAL COURT OF AUSTRALIA

Cooper v Lorenzin [2012] FCA 76

Citation:		Cooper v Lorenzin [2012] FCA 76
Parties:		NICHOLAS DAVID COOPER AS OFFICIAL LIQUIDATOR OF LORENZIN CONSTRUCTION PTY LTD v WILLIAM JOHN LORENZIN
File number:		SAD 22 of 2011
Judge:		LANDER J
Date of judgment:		6 February 2012
Date of hearing:	6 February 2012
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	8
Counsel for the Applicant:	Mr S Thomas
Solicitor for the Applicant:	Norman Waterhouse
Counsel for the Respondent:	Ms N Charlesworth
Solicitor for the Respondent:	Camatta Lempens

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 22 of 2011

BETWEEN:	NICHOLAS DAVID COOPER AS OFFICIAL LIQUIDATOR OF LORENZIN CONSTRUCTION PTY LTD Applicant
AND:	WILLIAM JOHN LORENZIN Respondent

JUDGE:	LANDER J
DATE OF ORDER:	6 FEBRUARY 2012
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application for an adjournment be dismissed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 22 of 2011

BETWEEN:	NICHOLAS DAVID COOPER AS OFFICIAL LIQUIDATOR OF LORENZIN CONSTRUCTION PTY LTD Applicant
AND:	WILLIAM JOHN LORENZIN Respondent

JUDGE:	LANDER J
DATE:	6 FEBRUARY 2012
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This proceeding was commenced by Mr Cooper as the official liquidator of Lorenzin Construction Pty Ltd (in liq) against the defendant, who was previously a director of the company in liquidation.

2. After the proceeding was commenced, and on 12 December 2011, Registrar Christie made a sequestration order in the Federal Magistrates Court against the estate of the defendant. The effect of such an order under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) is that a creditor cannot, except with leave of the court and upon such terms as the court deems fit, take any fresh step in the proceeding.

3. Section 60 of the Bankruptcy Act permits the court – which would probably include the Federal Court, having regard to the definition of “the court” in s 5 of the Bankruptcy Act – to stay any process instituted against a person in the circumstances set out in s 60.

4. On the last occasion that this matter was before the Court, the defendant’s counsel advised the Court of the order made against her client, and the matter was adjourned to allow the liquidator to consider his position in relation the proceeding.

5. When the matter came on before me today counsel for the plaintiff sought a further adjournment for a period of six months so that the plaintiff could attempt to prove in the defendant’s estate.  He said that if the plaintiff’s proof of debt was rejected in whole or in part the plaintiff may wish to seek leave to proceed in this Court.

6. The defendant continues to be represented by counsel in this Court, and Ms Charlesworth, on behalf of the defendant, submitted that there should be no further adjournment of the proceeding because the proceeding should be treated as being stayed pursuant to s 58.

7. I think, with respect, her submissions are right. I think the effect of s 58(3)(b) is to stay, by operation of the statute, the proceeding until such time as any party seeks leave to take a fresh step in the proceeding.

8. As there is no such application, I shall treat the matter as stayed under s 58(3)(b) and make no orders other than that the application for an adjournment be dismissed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:        10 February 2012