Deputy Commissioner of Taxation v Johns

[2005] FCA 1371

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Johns [2005] FCA 1371

DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v MALCOLM NELSON JOHNS
NSD 1050 OF 2004

ALLSOP J
21 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1050 OF 2004

BETWEEN:

DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

APPLICANT

AND:

MALCOLM NELSON JOHNS

RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

21 SEPTEMBER 2005

WHERE MADE:

SYDNEY

THE COURT:

1.Directs the Registrar to remove this matter from the docket of Allsop J and to treat the matter as if it were otherwise finalised. 

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	NSD 1050 OF 2004

BETWEEN:

DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

APPLICANT

AND:

MALCOLM NELSON JOHNS

RESPONDENT

JUDGE:	ALLSOP J
DATE:	21 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter by reason of s 189AAA of the Bankruptcy Act 1966 proceedings have been automatically stayed without apparent power in the Court to take any further action to bring the matter to an end.  That section provides:

   (1)If:

   (a)   an authority signed by a debtor under section 188 has become effective; and

   (b)    either:

   (i)a creditor's petition was presented against the debtor before the authority became effective; or

   (ii)a creditor's petition is presented against the debtor after the authority became effective but before the first or only meeting of the debtor's creditors called under the authority;

   proceedings relating to that petition are, by force of this subsection, stayed until:

   (c) the conclusion of the meeting; or
   (d) the adjournment of the meeting;

   whichever is the earlier.

   (2)   This section does not limit subsection 206(1).

2. The creditors’ petition is now stale.  The parties are agreed that Part 10 of the Bankruptcy Act is the applicable regime for the resolution of substantive issues.

3. A meeting of the debtor’s creditors has been neither concluded nor adjourned so as to lift the stay in accordance with paragraphs 189AAA(1)(c) or (d).  As the matter remained stayed by legislative decree it cannot be discontinued or dismissed.  It is equally clear that no further step can be taken in the proceedings in this Court.  Therefore to regularise the Court records and without prejudice to existing orders I direct the Registrar to remove the matter from my docket and treat the matter as if it were otherwise finalised. 

4. I have consulted with the parties’ legal representatives and there is no objection to this course.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             21 September 2005