Dolan v Australian and Overseas Telecommunications Corporation
[1993] FCA 202
•17 MARCH 1993
Re: AGATHOCLES AGATHOCLEOUS CONSTANTINE and OLGA CONSTANTINE
Ex Parte: SHELLCOVE DEVELOPMENTS PTY. LIMITED
No. B3968 of 1992
FED No. 202
Number of pages - 22
Bankruptcy
COURT
IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES
Beazley J(1)
CATCHWORDS
Bankruptcy - Bankruptcy Notice - Court discretion to extend time for compliance with the notice and to set aside notice where an appeal is pending - whether bona fide appeal - whether reasonable prospects of success.
Bankruptcy Act 1966.
Supreme Court Rules
Abalos v. Australian Postal Commission (1990) 171 CLR 167
Lipov v. Alexander Fraser and Son Ltd. and Anor. 36 FLR 126
Re Sterling; Ex parte Esanda Ltd 44 FLR 125
Re Taylor; Ex parte Deputy Commissioner of Taxation 74 FLR 377
Emerson and Anor. v. Wreckair Pty. Ltd 109 ALR 539
Skinner and Edwards (Builders) Pty. Ltd v. Australian Telecommunications Corporation 27 NSWLR 567
Super Pty. Limited v. S.J.P. Formwork (Aust) Pty. Limited (Court of Appeal 18 December 1992)
HEARING
SYDNEY, 9 March 1993
#DATE 17:3:1993
Counsel for the Applicant: J.J. Graves
Solicitors for the Applicant: Colin Biggers and Paisley
Counsel for the Respondent: I. Wales
Solicitors for the Respondent: Doumanis and Co.
ORDER
The Court orders that:
1. That the Orders of the Registrar made on 10 February 1993 be discharged.
2. That the respondent/debtor forthwith take all steps reasonably available to them to have the hearing of their appeal against the applicant/creditor heard expeditiously, including that they forthwith make application to the Court of Appeal for an expedited hearing of the appeal.
3. That the application to set aside the Bankruptcy Notice be extended to 7 days after the determination of the appeal by the Court of Appeal.
4. That the time for compliance with the Bankruptcy Notice be extended until 7 days after the determination of the appeal by the Court of Appeal.
5. Liberty to each party to apply on 2 days notice.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
BEAZLEY J This is an application by Shellcove Developments Pty. Limited ("Shellcove") to set aside orders of the Registrar made on 10 February 1993 that time for compliance with Bankruptcy Notice No. B3968 of 1992 dated 2 October 1992 ("the Bankruptcy Notice") be extended until further order and that the debtors' application to set-aside the Bankruptcy Notice be adjourned generally.
The Bankruptcy Notice was served on Agathocles and Olga Constantine ("the Constantines") on 22 December 1992. On the following day, they made an ex parte application to the Registrar for extension of time for compliance with the Bankruptcy Notice. An order extending the time for compliance to 2 February 1993 was made. Also on 23 December 1992, the Constantines filed an application seeking orders that the Bankruptcy Notice be set aside and that time for compliance with the Notice be extended. When the matter came before the Registrar on 2 February 1993, the parties consented to an adjournment until 10 February 1993 and a further order extending the time for compliance with the Bankruptcy Notice till 10 February 1993 was made. On 10 February 1993, the Registrar heard the application to set aside the Bankruptcy Notice and to extend time for compliance with it and made the orders referred to above.
The order to adjourn generally the Bankruptcy Notice was made pursuant to the provisions of s.31A(1)(f) of the Bankruptcy Act 1966. Section 31A(6) provides for a review by the Court of the exercise of such power. The order extending the time for compliance with the requirements of the Bankruptcy Notice was made pursuant to s.41(6B) of the Act. Section 14(5) provides for review of the exercise of that power by the Court. By application dated 26 February 1993, Shellcove applied for review of the Registrar's order that the application to set aside the Bankruptcy Notice be adjourned generally. That application came before me for hearing on 9 March 1993. During the course of the hearing, leave was granted to amend the application to include a review of the order adjourning generally the Debtors' application to set aside the Bankruptcy Notice.
Notwithstanding that the rights of review in relation to the exercise of each of the relevant powers arises under different sections of the Act, it was not in dispute between the parties that the principles which govern the exercise of those rights are the same. The Court, on review, not only proceeds by way of a hearing de novo but is entitled to exercise the discretions delegated to the Registrar and may consider evidence which was not before the Registrar.
The Bankruptcy Notice was based upon a judgment debt obtained by Shellcove against Constantine in the sum of $188,433.88 in proceedings brought in the Supreme Court of New South Wales claiming moneys alleged to be owing to Shellcove pursuant to a contract for the construction by Shellcove of a residence for the Constantines. The Constantines cross-claimed in those proceedings against Shellcove and its principal, Richard John Lewarne, claiming defective workmanship.
The Supreme Court proceedings had been commenced in December 1991, and pursuant to Part 72 of the Supreme Court Rules, were referred to a referee, Mr. Geoffrey Lumsdaine for reference and report. On 31 August 1992 Mr. Lumsdaine delivered to the Court his report dated 28 August 1992. The matter was listed before Cole J on 4 September 1992 for consideration as to whether the report should be adopted, rejected or varied pursuant to Part 72 rule 13. Agreement had been reached between the legal representatives for the parties that on that day the matter would be adjourned to 11 September 1992. Cole J however refused to adjourn the matter. His Honour considered that there was no reason to depart from the well-established practice in the Construction List that referees' reports received by a Wednesday in any given week were normally considered on the first motion day thereafter, which was the following Friday. At the time of refusing the adjournment, his Honour stood the matter down in the list for consideration later in the day, when his Honour heard the Constantines' application that the report be rejected. His Honour delivered judgment on 8 September 1992 wherein he adopted the referee's report and ordered judgment for the plaintiff in the sum of $189,802.72. His Honour also directed that there be judgment for the cross defendant on the cross-claim.
During the hearing before Cole J, it was submitted on behalf of the Constantines that Lewarne had manufactured evidence, that he should not be believed and that the referee should have accepted the evidence of Mr. Constantine and his architect and engineer. It was submitted that a consideration of certain transcript and exhibits before the referee would establish that the referee should have preferred the evidence of the latter over the evidence of Lewarne. It appears that the transcript and exhibits, particularly certain photographs, demonstrated that certain work could not have been done at a time when Shellcove claimed for labour costs in respect of it. However, the transcript and exhibits in the reference were not tendered in the application. Cole J held that the failure to tender this material meant the inevitable failure of the submission. In addition, his Honour relied upon Abalos v. Australian Postal Commission (1990) 171 CLR 167 at 179, holding that a referee was in the same position of advantage as a trial judge in observing witnesses. His Honour also considered that the report of the referee advanced significant reasons as to why the evidence of Lewarne should be preferred.
On 15 September 1992, the Constantines lodged a Notice of Appeal against the decision of Cole J, together with a Notice of Motion seeking a stay of the judgment. The Notice of Motion was heard by Clarke JA on 21 September 1992. The grounds of appeal at the time of the application before Clarke JA were:
"1. That the decision of the Referee should not be adopted because:
(a) The Referee failed to consider the evidence of Mr John Conner, ("the Engineer");
(b) On the question of credit, the Referee failed to consider firstly whether the Second Respondent manufactured evidence for the purpose of the Hearing and if so the effect that ought to have on the degree of reliance to be placed on the rest of his evidence, and Secondly the evidence of the engineer.
2. That the decision of the Referee should not have been adopted because:
(a) The Referee fails in his Report to give adequate reasons to support his findings on Quantum.
(b) The Referee has erred in Law in the calculation of Quantum in that:
(i) paragraph 5.14 of the Report is contrary to the Builders Licensing Act.
(ii) in the circumstances of this cause, he assessed the First Respondent's entitlement on Quantum Merit on the basis of the Second Respondent's reasonable costs of carrying out the works in relation to the full contract period.
3. That his Honour erred in refusing to adjourn the proceedings for one week on 4 September 1992."
On the hearing of the application by Clarke JA, no submissions were directed to the ground that the referee failed to consider the evidence of the engineer, the refusal to adjourn the proceedings, or as to any perceived error in the assessment of damages. The only ground relied upon was the failure of the referee to consider whether Lewarne had manufactured evidence and the failure to express in his reasons the considerations which led him to accept Lewarne's evidence, notwithstanding the argument relating to manufactured evidence.
Although no argument was directed to it, His Honour expressed a prima facie opinion that the ground of appeal relating to the refusal of the adjournment was unlikely to succeed. His Honour further noted that it had been established "beyond any shadow of a doubt" that Shellcove was insolvent and unable to pay its debts as they fell due. His Honour considered this a matter of great significance but stated it was also necessary to consider "the strength of the grounds of appeal", a consideration to which I shall return shortly. Another relevant factor according to his Honour, although he regarded it of less significance, was that even if the appellants succeeded, it would not necessarily mean that the appellants were thereby not indebted to Shellcove. Rather, it was almost certainly likely that there would have to be a new determination of the issues between the parties.
Returning to Clarke J's consideration of the prospects of success of the appeal, the essential argument put on behalf of the Constantines was that the referee had failed to expressly deal with the critical aspect necessary for the proper determination of the reference, namely the alleged improper conduct on the part of Lewarne or alternatively if he had done so, he had failed to expose his reasoning process such as to involve legal error. The improper conduct which it was submitted, was not considered, was the same as that raised before Cole J namely, the alleged manufacturing of evidence by Lewarne to support his claim for labour costs in circumstances where there was strong objective evidence to prove that work was not done at the time in question.
His Honour noted the difficulty with this submission having regard to the failure to tender the transcript and exhibits before Cole J. His Honour however proceeded to consider the stay application on the basis that in the Court of Appeal leave would be granted to tender this further evidence. His Honour accepted that the further evidence would be "a compelling point on the issue of credit. It may even be right to describe it as a very powerful point ...". Proceeding on this basis, his Honour considered it necessary to examine the manner in which the reference had been conducted. His Honour noted that there had been little cross examination on the issue of manufactured evidence, notwithstanding that credit in the matter was a live issue and there had been extensive cross examination of various witnesses. It was submitted to Clarke JA that the reason there was no cross examination on this issue was that there had been an agreement between counsel that neither would rely upon the rule in Browne v. Dunn (1894) 6 ER 67, and further that the matter had arisen in re-examination so that there had been no opportunity to cross examine. His Honour dismissed the latter argument as it would have been open to recall Lewarne and in fact he had been recalled on other issues. His Honour considered that the issue of the manufactured evidence was of such significance that "it was incumbent upon (counsel) to put the allegation to the witness in order to enable him to deal with it ...". His Honour stated he was unaware of the extent of the agreement in relation to Browne v. Dunn. However, whatever that agreement might have been, his Honour could not "conceive that it would have permitted counsel to mount a serious attack on the credibility of a witness without giving that witness any opportunity to deal with the precise subject matter of the attack". Further, his Honour thought that there was considerable force in the submission "that the referee dealt with the issue of credit in a completely satisfactory manner ...". His Honour thus concluded that "the claimants' chances of success in the appeal must be regarded as marginal".
Finally, in his determination of the application for a stay, his Honour considered that it was relevant that most, if not all, of the first opponent's financial difficulties resulted from this one construction project, that it had incurred fairly large legal costs and had still not paid the window manufacturers. His Honour stated "after all, according to the report of the referee, (the Constantines) are enjoying the fruits of labours of (Shellcove) without having paid fully for them and they have in the process exposed (Shellcove) to very severe financial embarrassment". His Honour indicated that originally he had thought he should grant a stay upon terms, but at the conclusion of the argument considered that a stay should be refused. It also appears from the judgment that counsel for the applicants raised certain difficulties with any imposition of conditions on an order for a stay. His Honour took this matter into account in refusing the stay.
Subsequent to the hearing of the application for a stay, the Constantines filed a Supplementary Notice of Appeal which specified three additional grounds, namely:
"1. The Referee erred in assessing credit wholly or
substantially upon the basis of physical demeanour and without having proper regard to the objective circumstances.
2. The Referee erred in his determination of quantum by
granting the respondent an allowance for supervision, design and labour for that part of the construction period when the respondents, in breach of contract, had cause and undue delay.
3. His Honour erred in refusing to adjourn the
proceedings on 4 September 1992 when:
(a) the adjournment was sought on the application of all parties.
(b) the appellant was manifestly disadvantaged.
(c) no prejudice could have been suffered by the respondents by reason of the adjournment."
Counsel for the Constantines submitted that the discretion invested in this Court to extend time for compliance involved different factors to those relevant to a stay application. He submitted that as the debtors had instituted a bona fide appeal against the judgment upon which the Bankruptcy Notice was based, the Court should exercise its discretion to extend time for compliance with the Bankruptcy Notice. See Lipov v. Alexander Fraser and Son Ltd. and Anor. 36 FLR 126. As Sweeney J said at p 130:
"... the grant of an extension of time for compliance will enable the applicant, should his appeal succeed, to avoid the commission of an act of bankruptcy, based upon a judgment which should not, on this assumption, have been given against him in the first place."
In Re Sterling; Ex parte Esanda Ltd 44 FLR 125, Lockhart J, after noting that an appeal did not operate as a stay, referred to Lipov (supra) and agreed that the pendency of an appeal may be a reason to seek the adjournment of an application to set aside a Bankruptcy Notice. See also Re Lentini and Anor; Ex parte Lentini and Anor. v. CSR 29 FCR 363.
However, the mere existence of an appeal is not sufficient of itself for the Court to so exercise its discretion in favour of an extension of time. In Re Taylor; Ex parte Deputy Commissioner of Taxation 74 FLR 377 Sheppard J refused an application to set aside a Bankruptcy Notice, and for extension of time in which to comply with its provisions. His Honour found there was no evidence that the debtors had reasonable prospects of success in the appeal which had been lodged against the judgment which formed the basis of the Bankruptcy Notice. As his Honour noted at p 379 "What (the debtor) wishes me to do really is simply to take into account the fact that an appeal has been lodged". His Honour rejected that that was sufficient. In Emerson and Anor. v. Wreckair Pty. Ltd 109 ALR 539 at 547 the Full Court of the Federal Court held that the judge at first instance in that case had been correct in refusing to extend time for compliance with the Bankruptcy Notice in circumstances where there was little substance in the appeal (emphasis added).
Here, counsel for Shellcove argued Clarke JA had given a considered judgment as to the prospects of success of the appeal and had regarded them as marginal. Counsel submitted that when one looked at the grounds of appeal and the judgment of Cole J, it was clear that Clarke JA's assessment was correct and that the applications to extend time and to set aside the Bankruptcy Notice should be refused.
Counsel for the applicant submitted, however, that since the judgment of Clarke JA, the grounds of appeal had been amended so as to raise two matters of particular importance. The first was that the Constantines had been denied procedural fairness. This argument was based on a submission that counsel for the Constantines was not adequately prepared to argue the matter on 4 September 1992 when it came before Cole J, because of the arrangement between the legal representatives that the matter be adjourned for a week. Secondly, it was submitted that there was a failure by the referee to give proper reasons such that the report itself was tainted. In particular, it was argued that paragraph 2.9 of the referee's report which dealt with the referee's findings as to credit did not constitute adequate reasons. It was incumbent upon the referee, so the submission went, to deal with the objective evidence which would have supported one version of the evidence as opposed to the other and that he had failed to do so.
The referee's report was attached to an affidavit of Elizabeth Brown of 9 February 1993. Paragraph 2.9 was in the following terms:
"The question of credit in this case has been difficult. On the one hand there are professional men generally corroborating one another, with the Builder's evidence standing alone. I have given much consideration to the balance of probabilities, and to the demeanour of the witnesses in cross examination. The Builder generally gave his replies in a straightforward manner, with such slight nervousness as may be expected, and I formed the opinion that he was responding with what he believed to be truthful answers. The Proprietor and the Architect generally both appeared, when confronted with a question of conflicting evidence, to falter and/or answer evasively and/or display body language consistent with a less than frank response."
This paragraph, which was the only paragaph in the report to which I was referred, sets out the referee's conclusions as to credit. However, a reading of the report in full reveals there were other passages which dealt with the question of credit. Some of those passages set out the basis upon which the referee made a particular finding of credit. Notwithstanding this, nowhere in the report was there any reference to the photographic and other material which related to the claim for labour costs to which I have referred above.
There was also before me the evidence of Ian George, barrister, which set out the basis of the agreement in relation to Browne v. Dunn. In that affidavit, Mr. George said that it was agreed "that Counsel would not argue in accordance with that rule but it would be sufficient if Counsel drew the Referee's attention to those areas where the parties evidence differed". Further evidence was given by Mr. George as to the terms of that discussion. That evidence did not take the matter further in my opinion, and if anything, may indicate the scope of the agreement was narrower in compass than counsel appears to have believed. However, leaving it in the terms to which I have referred, I am of the opinion that there continues to be substance in Clarke JA's view that in a matter which was central to the case, the particular matters relied upon would have to be put to the witness concerned.
In considering the prospects of success of the appeal, it is necessary to have regard to the Court's function when deciding whether to accept or reject the referee's report. Part 72 rule 13 of the Supreme Court Rules provides:
"(1) Where a report is made, the Court may, of its own motion, after notice to the parties, or on application by any party, on a matter of fact or law or both -
(a) adopt, vary or reject the report in whole or in part;
...
(d) decide any matter on the evidence taken before the referee, with or without additional evidence,
and shall give such judgment or make such order as the Court thinks fit."
The provisions of rule 13 give to the Court a wide discretion as to whether it should reconsider any question of fact found by the referee. As was said by Cole J in Skinner and Edwards (Builders) Pty. Ltd v. Australian Telecommunications Corporation 27 NSWLR 567 at 575, 576.
"The reasons why the referee has reached a particular finding of fact should appear in his reasons ... If they do and if a reading of the report satisfied the judge that it is appropriate for him to adopt the opinion of the referee on that question of fact, he may properly do so without resort to the evidence. The fact that the judge may himself have reached a different conclusion of fact on the evidence before the referee, neither obliges the judge to reject the referee's opinion or, indeed, to read all the evidence and consider whether he would have come to the same conclusion on that fact as did the referee."
"... of course, the court may reconsider a question of fact if it does not have comfortable satisfaction that the reasons disclosed in the referee's report reasonably lead to the finding of fact made by the referee".
See also Chloride Batteries Australia Limited v. Glendale Chemical Products Pty. Limited (1988) 17 NSWLR 60.
The Court's power under Part 72 rule 13 was recently considered by the Court of Appeal in Super Pty. Limited v. S.J.P. Formwork (Aust) Pty. Limited (Court of Appeal 18 December 1992) where Gleeson CJ stated (at p 29)
"... the judge, in reviewing the report and deciding whether to adopt, vary or reject it, has a judicial discretion to exercise in a manner that is consistent both with the object and purpose of the rules and with the wider setting in which they take their place.
That wider setting is a system for the administration of justice according to law".
His Honour identified the purpose of Part 72 as a means of providing for a form of partial resolution of disputes alternative to orthodox litigation. It was not "some kind of warm-up" for a full hearing before the Court. His Honour then identified a number of bases that would ordinarily result in a report being rejected, namely that the report revealed "some error of principle, some absence or excess of jurisdiction, or some patent misapprehension of the evidence. ... So also would perversity or manifest unreasonableness in fact finding".
However, as a general rule, the referee's findings of fact will not be re-agitated by the Court, especially where there is factual material available to the referee to reach the finding made. Provided the Court is satisfied that the referee properly considered the factual issues the report should be adopted. It was argued in Super Pty. Limited, that in circumstances where the decision of the referee depended upon a choice between conflicting evidence of individual witnesses, the judge at first instance should have reheard the evidence of those witnesses and formed his own view as to their reliability. Gleeson CJ dealt with the submission at p 32 as follows:
"Where, as in the present case, however, what was involved was an attempt to persuade the judge to reconsider issues of credibility and reliability that had been determined by the referee, it was open to Giles J to decide, as a discretionary matter, and having regard to the particular circumstances, that such an exercise would be inconsistent with the purpose of the rules of the court and the original reference to arbitration, and should not be permitted".
I think it has to be acknowledged that the Constantines have a difficult path to tread in relation to the appeal. However, in my opinion, the adjournment point may not be as hopeless as was considered by Clarke JA., especially as it is reformulated in the supplementary grounds of appeal. The argument relating to the referee's findings as to credibility of witnesses is more difficult. I have set out paragraph 2.9 of the referee's report. I have also referred to the fact that in other portions of the report the referee made finding as to credit, some of which were supported by other objective evidence. That material, or the basis of those findings does not find expression in paragraph 2.9. Paragraph 2.9 must therefore, be read as an overall summary of the referee's findings as to credit.
The existence of these findings as to credit on individual issues throughout the body of the report tends to diminish the force of the submission relating to the referee's findings as to credit, focused as the submission was on paragraph 2.9 of the report. On the other hand, nowhere in the report is there any reference to the objective photographic and associated evidence which reflected on the builder's evidence as to labour costs. It is arguable therefore that the referee's finding in relation to that issue was so against the weight of evidence as to be indicative of a misapprehension of the evidence or of some perversity in the finding. Alternatively, it is possible that the referee simply overlooked this critical objective evidence in dealing with the question of credit on the issue to which it was directed. His failure to consider the material, if that is what occurred, may indicate some overall failure in his total assessment of the witnesses. These matters, it seems to me, are also linked to the ground of appeal that the referee's reasons were inadequate as, at least on the issue relating to the labour costs, it is not apparent why the referee chose the builder's evidence, in circumstances were there was no discussion of the photographic and associated evidence.
The success of both of these arguments will undoubtedly depend upon whether the Constantines are able to tender the photographic and associated evidence on the hearing before the Court of Appeal. No submissions were directed to the likelihood of the Constantines being able to adduce such further evidence. However, it seems to me that the determination of that issue may very well depend upon the success of the argument relating to the adjournment issue.
In all these circumstances, I consider the Constantines have an arguable albeit difficult appeal. There is no dispute before me that the appeal has been instituted bona fide and although there is criticism that the appeal has not been prosecuted diligently, because of a failure to attend upon a date for the settlement of the draft index, that failure has been adequately explained by there being a change of solicitors at the time.
Should I, in these circumstances, exercise my discretion in favour of the Constantines? Having reached the conclusion which I have in relation to the prospects of success I am inclined, although barely so, to do so. Are there then, any other factors which might exist which could affect that view? The only other relevant matter which was the subject of both evidence and submissions was the financial circumstances of Shellcove. Its estimated financial position as at 31 December 1992 was that it had accumulated losses of $165,862. Those accumulated losses comprised an operating loss for the 6 months ended 31 December 1992 of $88,660, and accumulated losses brought forward as at 1 July 1992 of $77,202. It has suffered a judgment against it in favour of Grandview Aluminium in the amount of $52,000. This amount was owed to Grandview Aluminium in respect of materials used for the Constantine residence. In an affidavit filed on 4 March 1993 Lewarne stated that if Shellcove did not recover the judgment debt, it would be unable to pay its debts but that recovery thereof would enable it to pay its debts as and when they fall due. The financial records of Shellcove further indicated that a significant factor in its present financial position was a write-off of bad debts in 1991 of $152,238.70.
Accordingly, it cannot be said, as was thought by Clarke JA that Shellcove's financial position was caused entirely by the non-payment of the judgment debt. However, it is quite clear that if its financial position remains approximately as it was at 31 December 1992, the payment of the judgment debt would enable Shellcove to return to a profit situation, although the profit would be very small. It would not be sufficient to enable Shellcove to repay the debt or even a substantial portion of it should the appeal be successful. In my opinion, that is a significant factor when balanced against the serious consequences of the commission of an act of bankruptcy. I consider, therefore, that it is appropriate that the time for compliance with the Bankruptcy Notice be extended and that the Bankruptcy Notice be stood over. However I do not consider that the Notice should be stood over generally, and I shall refer to that again in a moment.
During the course of submissions, I raised with counsel for both Shellcove and the Constantines' whether I could impose conditions in respect of any order I might make. Both parties agreed that I did have such a power. These submissions were in the context of a discussion as to whether steps should be taken to have the appeal expedited. The expedition of the appeal is, of course, a matter entirely outside my control. However, I consider that the Constantines should do everything they can to have an expeditious resolution of the appeal, including making an application for expedition. Counsel for the Constantines' was agreeable to such a course. In those circumstances, I consider that the appropriate orders to make in this application are:
1. That the Orders of the Registrar made on 10 February 1993 be discharged.
2. That the respondent/debtors forthwith take all steps reasonably available to them to have the hearing of their appeal against the applicant/creditor heard expeditiously, including that they forthwith make application to the Court of Appeal for an expedited hearing of the appeal.
3. That the application to set aside the Bankruptcy Notice be extended to 7 days after the determination of the appeal by the Court of Appeal.
4. That the time for compliance with the Bankruptcy Notice be extended until 7 days after the determination of the appeal by the Court of Appeal.
5. Liberty to each party to apply on 2 days notice.
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