Hibbard, Re N.K. Playroom Pty Ltd, Ex Parte

[1988] FCA 596

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l - JUDGMENT No, ... 59Ly . ........ . ..- 8%

BANKRUPTCY - whether creditor's petition should be adjourned

pending debtor's application f o r special leave to appeal to

High Court fiom Full Court of Supreme Court - whether

principle in Ahern's case applies.

Re:  Norman Kingsley Hibbard

Ex parte: Playroom Pty Ltd

Qld P1606 03 1987

PINCUS J.
BRISBANE

14 OCTOBER 1988

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IN THE FEDERAL COURT OF AUSTRALIA 1 I '

GENERAL DIVISION 1 QLD P1606 of 1987

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BANKRUPTCY DISTRICT	OF THE SOUTHERN )	> .
DISTRICT OF THE STATE OF QUEENSLAND	)	!
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RE:  NORMAN KINGSLEY HIBBARD i.

(Debtor)

EX PARTE: PLAYROOM PTY LTD

(Creditor)

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	14 OCTOBER 1988  i
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1. the hearing of the petition is adjourned to

Tuesday, 29 November 1988 at 9.30 a.m. -

(i) upon the undertaking given by MS Kiefel Q.C.

for the debtor that the debtor will not,

during the period of the adjournment, dispose
of his assets other than in the ordinary
course of business; and

(ii) upon t h e condition that	the debtor file in	. I
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this Court and serve upon the solicitors for

the judgment creditor an affidavit setting

out in detail the nature and value	of his
assets as estimated by hrm;	the nature and
extent of his liabllities; and	in particular,
the nature and value of any trusts	in which
he or his family are interested on	or before

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28 October 1988; : '

2 .    either party may bring the petition on for hearing

on two days notice to the other at any time; and

3 .    the costs of today's hearing be the petitioning creditor's costs in the proceedings.

NOTE :  Settlement and entry of orders i dealt with in

-	Rule 124 of the Bankruptcy Rules.
IN THE FEDERAL COURT OF AUSTRALIA	1
GENERAL DIVISION	1 QLD P1606 of 1981
BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF QUEENSLAND )

RE:  NORMAN KINGSLEY HIBBARD

(Debtor)

EX PARTE: PLAYROOM PTY LTD .,

(Creditor)

PINCUS J. 14 OCTOBER 1988

EX TEMPORE REASONS FOR JUDGMENT

This is a creditor's petition for sequestration order

based upon a bankruptcy notice issued on the 22 September 1987.

It relates to a judgment debt entered in the Supreme Court of l

Queensland in a sum slightly in excess of $1,000,000. The

judgment was appealed against and on 18 December last year I was

asked by counsel for the debtor to adjourn the creditor's

petition, which had in the meantime been issued. I did that. The

appeal came on in the Full Court of the Supreme Court and has

recently been dismissed, unanimously.

The debtor now says he wishes to apply for special leave

to appeal to the	High Court and the question arlses whether the
creditor's petition should be heard or adjourned.	I have been

referred to the decision of the Full Court in Ahern	v.	Deputy
Commissioner of Taxation	(Qld) (1987) 76 A.L.R.	137 at p.148 where

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said: ,:  Court the

"It is also well established that in general a court

exercising jurisdiction in bankruptcy should not

proceed to sequestrate the estate	of a debtor where
an appeal is pending against the judgment relied	on
as the foundation of the bankruptcy	proceedings

provided that he appeal is based on genuine and

arguable grounds. I'

As has been pointed out by Mr P. Lyons, for the

petitioning creditor, the Court's reference there is to an appeal and not to an application for special leave. However, a litigant

cannot appeal to the High Court from a Full Court other than by ,

special leave, so that the question of principle raised	is whether
the rule laid down	In Ahern's case applies to such applications.

The question thus raised seems to me not to permit of a

very clear answer, on the authorities, but my opinion is that,	in
general, if there appears to be	a reasonably arguable ground and

the judgment creditor does not seem likely to suffer any great

disadvantage, this Court should not make a judgment debtor

bankrupt pending the hearing of his application for special leave

to appeal to the High Court. When asked by me what was the ground

on which special leave was sought, MS Kiefel Q.C.	for the debtor
said that there were a number of grounds; one of which she
particularly mentioned, was that the debtor lost	in he Full Court

on a point which was not canvassed before that Court.

I must say that does not seem to me to be a particularly

promising ground, in the circumstances as explained to me.

Nevertheless, in view of the relatively short time which appears

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likely to elapse before the application is heard in the High I. .

Court, and the considerable time which has already elapsed since

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the	judgment	was	originally	entered,	it	would	'seem	an odd	.	-.
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proceeding to make the debtor bankrupt, at present.

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I therefore propose to adjourn the hearing of the

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creditor's petition to a date suitable to the parties after 25

November	next,	but	in the	particular	circumstances	of	the	case	I.
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have decided to impose two conditions. One which MS Kiefel,

senior counsel for the debtor does not oppose is that an

undertaking be given that the debtor will not, during the period	. ,
of the adjournment, dispose	of his assets other than in the

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ordinary course of business. That undertaking has already been

given.	1 .	' .,
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The second condition, which is resisted but which . .

nevertheless will be imposed, is that on or before 28 October 1988 .-.

the debtor file in this Court and serve upon the solicitors for I .

the	judgment	creditor	an	affidavit	setting	out	in	detail	the	;	,~
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nature and value of his assets as estimated by him; the nature and

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extent of his liabilities; and in particular, the nature and value

of any trusts in which he or his family are interested.	!
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Mr Lyons also suggested that some provision be made in j. .,

my order for bringing on the application for hearing of the

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petition early, if circumstances change. Another factor which	i'
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might cause that to be necessary is failure by the debtor to	I. I.
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comply in full with the terms of	my order as to the affidavit. I	I .
propose to add	an order, in response to Mr Lyons'	request, that

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e i t h e r p a r t y may b r i n g the p e t i t i o n o n for hearing on two days

! n o t i c e t h e t o o t h e r a t any time.

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