Druin Pty Limited v Daly

[2000] FCA 1361

FEDERAL COURT OF AUSTRALIA

Druin Pty Limited v Daly [2000] FCA 1361

DRUIN PTY LIMITED v TERENCE JOHN DALY

N 8324 of 1999

BURCHETT J
14 SEPTEMBER 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 8324 of 1999

BETWEEN:	DRUIN PTY LIMITED Substituted Applicant
AND:	TERENCE JOHN DALY Respondent
JUDGE:	BURCHETT J
DATE:	14 SEPTEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BURCHETT J

1. In this matter, Mr Rodionoff, who appears for the debtor, has renewed an application for adjournment which has been made previously.  I should record my gratitude for the thorough and careful way in which he has argued this matter, and I think he has put everything that could fairly be put on behalf of his client in that application.  There are some matters that, in a different total setting, might well lead the Court to grant an adjournment.  A very considerable majority of the significant number of creditors have indicated support for an adjournment to permit certain claims in the Fair Trading Tribunal to be pursued to their end by the debtor.

2. Unfortunately, only one of those claims is at a stage where any result could be anticipated in the reasonably near future, and in that case the Tribunal has reserved, so that a sequestration order, if made, is not going to impede the completion of that matter; should the result measure up to the debtor's hopes, of course, an application could be made for an annulment at a reasonably early stage.  On the other hand, if I delay this matter further and the result does not measure up to the debtor's hopes, it is plain that the petitioning creditor may suffer.

3. The other claims which the debtor wishes to pursue would undoubtedly involve a much longer period of delay.  The liabilities of the debtor, as disclosed in his own affidavit, corrected in a couple of respects by an affidavit of his solicitor, exceed his assets by more than half a million dollars.  He has conceded that he is unable, at the present time, to offer payment of the relatively small debt of some $30,000 claimed by the petitioning creditor, notwithstanding that I have granted a short adjournment to give him an opportunity to do that.

4. In all of the circumstances of this case, I have come to the conclusion that it would be contrary to the practice of courts administering bankruptcy to continue the considerable amount of time that this debtor has known he had to provide for payment of, in particular, the debt of the petitioning creditor, which obtained its judgment over a year ago.  Accordingly, I refuse the application for an adjournment.

5. Mr Rodionoff did raise a question as to the sufficiency of the affidavit material to sustain a sequestration order, but this is, it appears, a technical deficiency, and I am prepared to stand the matter to a time this afternoon to enable the petitioning creditor to remedy the claimed defect, and to bring the evidence up to date in any respect that requires updating.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.

Associate:

Dated:             22 September 2000

Counsel for the Applicant:	Mr M K Condon
Solicitor for the Applicant:	Kemp Strang
Counsel for the Respondent:	Mr P D Rodionoff
Solicitor for the Respondent:	Colquhoun & Colquhoun
Date of Hearing:	14 September 2000
Date of Judgment:	14 September 2000