Dempster. J.W. v Parsell, L

[1994] FCA 573

JUDGMENT No. ....-,,,J S73 99 -

COURT OF AUSTRALIA )

NB 313 of 1994

- 1

RE: -

Debtor

EX PARTE:  -

Creditor

CORAM: Burchett J.
PLACE: Sydney

DATE : 26 July 1994

In this matter, I am satisfied on the evidence that

Mr Dempster did not actually receive notice of the hearing which

was to take place on the occasion on which the sequestration order was made. However, the circumstances in which that situation arose are quite special and unusual, and I do not think that I could make a finding that the situation arose, to use the

what occurred of the normal right which the rule audi alteram	partem gives to every litigant, of notice of the hearing, but on
the other hand there were discretionary aspects of the situation

words I quoted from the High Court in ge Anasia ( 1985) 11 FCR 127

at 133, "through no fault of his own". On the contrary, I think
there was considerable fault on his part.

I also have grave doubts as to whether it can truly be said that there is a real question to be tried. In that situation, I think I have a discretion. There was a failure on the face of

m.

-which-tell against the making of an-order of"mnu1ment at this
etage.

Into the balance, however, has now been placed, in order to weigh down the side in favour of the application, an undertaking to the court in clear terms, covering both the matter of consent to a sequestration order in eight week's time, if the creditors are not paid, and also an undertaking to the court to protect the annete in the meanwhile. In other words, what Mr Aldridge seeks on behalf of hie client is an opportunity to arrange payment, and if that cannot be availed of, his client has given an undertaking to the court to secure the position of the creditor.

I think, on that basis, I can be satisfied that there is a real question to be tried, namely, whether the debtor can in fact achieve payment, that being the only rational purpose of his pursuit in these circumstances of the application. I am prepared to exercise my discretion on that footing in favour of making an

that the creditor's petition be stood for hearing to 20 September order annulling the bankruptcy, which I now make, and I direct	of thie year, which is a date before the expiry of the creditor's
petition. It is clearly understood that the purpose of standing it to that date is to enable it then to be dismissed, if the debtor is in a poeition to seek its dismissal after having paid the creditors who have been represented before me, whose debts are estimated at a figure which is not totally precise but between $50,000 and $60,000, and on the other hand, if he has not been able to achieve that, then pursuant to his undertaking the court will be in a position to make a sequestration order.
I reserve until 20 September, and to the judge who deals with thematter then, the appropriate costs orders, includingthe queation of the costs order sought by Miss Nash on behalf of her client.

I certify that this and the preceding two (2) pages

are a true copy of the Reasons for Judgment herein of

his Honour Mr Justice Burchett.

A~sociate:

Date: 9 August 1994

Counsel for the Debtor:  M r M. R. Aldridge

Solicitors for the Debtor:	Messrs Ternes & Salier
Solicitors for the Creditor:	Mr I.D. Rolfe of Messrs Lynch, Rowland
& Rolfe

Date of hearing:  26 July 1994