Cross, Re W.E. Karreman, Ex Parte M. & D.

[1988] FCA 591

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WDGMENT No. S?..! .... P ...." & F . .

IN THE FEDERAL COURT OF AUSTRALIA 1

DIVISION	GENERAL	1	QLD P1035	Of 1988
BANKRUPTCY DISTRICT OF THE SOUTHERN	)

DISTRICT OF THE STATE OF QUEENSLAND )

RE:  WAYNE EDWARD CROSS

EX PARTE: MARTEN KARREPIAN AND DIRK KARREMAN j :

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	21 SEPTEMBER 1988

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WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

i	1.	the matter be adjourned to	9 a.m. on 11 October
1988;

2.	the written undertaklng given by	Mr Cross be filed;	'. .
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3 . today's proceedings including the argument be

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transcribed;

4 .    the costs of today's hearing be the petitioning creditors' costs ln the proceedings.

NOTE :  Settlement and entry of orders is dealt with in

- Rule 124 of the Bankruptcy Rules.

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IN THE FEDERAL COURT OF AUSTRALIA 1

DIVISION GENERAL 1 QLD P1035 of 1988 i'

BANKRUPTCY DISTRICT OF THE SOUTHERN )

DISTRICT OF THE STATE OF QUEENSLAND )

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RE:	WAYNE EDWARD CROSS
EX PARTE: MARTEN KARREI?AN	AND DIRK KARREMAN

PINCUS J. 21 SEPTEMBER 1988

EX TEMPORE REASONS FOR JUDGMENT	i.
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In this matter the affidavit	is, as Mr Aldridge says,	! , I
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very unsatisfactory, and the evidence of Mr Cross i , in general, . .

unsatisfactory. No serious attempt has been made to give a I

complete account of his financial position, and there is certainly

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reason to think that it is quite hopeless. The contract is a

strange	document,	and	the	principal	element	of	strangeness	is the	. .
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printed clause	29, which seems to me to	be designed to make the	r .
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whole document almost a snare and a delusion. It is a matter for	i '
surprise that the Law Society approved of	it. The general effect
of the contract seems to be that the purchaser has two weeks	to

get finance. If he does not get finance, whether through his own

fault or not, he gets the deposit back. The only qualification to

that is under clause 30, the vendor seems to obtain some benefit,

in that he gets the interest on the deposit if the contract is not

completed due to the default of the purchaser. Therefore, the

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purchaser does not risk much, and the absence	of evidence - of any	I
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substantial kind - that the purchaser	is really interested in	I

is concern. buying for a matter 1

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Nevertheless, I have decided to grant an adjournment,

subject	to	the	giving	of an undertaking,	and the	undertaking	is	!
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designed to protect the position of the petitioning creditor	t.3
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during the period of adjournment.	I notice from paragraph 5 that	l
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Mr Cross has been busy preferring creditors during the current '

month, having paid $41,000 - odd during that period of time, the

source of whrch is undisclosed.	: >
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It is a matter for discusslon between the parties, but :

it will be necessary for Mr Cross to give some undertaking to

prevent this bleeding away of whatever financial position he has

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to the detriment of the petitioning creditors, pending the further

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hearing of the matter. Under this so-called contract for sale	-	I
it is little better, cornerclally, than an option - the date for

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approval is 7 October, which is 16 days away. But	(as one might
say typically) the stated date for approval	is not really the date

for approval at all, because if one reads the fine print, it turns I .

out that the date on which everything crystallizes is two days

later:  9 October, which is a Sunday.

The orders will be that the matter be adjourned to 9

a.m. on the date I have mentioned - that is 11 October, to be

heard by me.	The written undertaking given by Mr Cross will be
filed.	I direct that today's proceedings, including the argument,

be transcribed. The costs of the hearing today will be the ,

petitioning creditors' cos ts in t he proceedings.

f certify tKat this and the & preceding
pages are a trus copy of the reasons for
judgment herein of His Honour

Mr. Justice Pincus

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