Horley v Hastings Deering (Qld) Pty Ltd

[1990] FCA 625

JUDGMENT No. /.9.0-.,

RAL COURT OF A U S T U 1

=ER& DIVISION 1

ICT OF THE SOU-) QN 654 of 1990

OF THE W E OF - )

RE :

EX PARTE: THE ABOVENAMED

(Applicant)

SLANDl PTY. LTD.

(Respondent)

S OF ORDER

PINCUS J.

18 OCTOBER 1990

WHGRE:  BRISBANE

1.   The matter be adjourned for further hearing on Monday 26 November 1990 at 9.15 a.m.

2.    The costs of and incidental to today be costs in the proceedings.

Settlement and entry of orders is dealt with in Rule

124 of the Bankruptcy Rules.

JN THE FEDERAL COURT OF AUS-	1
-	1

PTCY DISTRICT OF THE SOUTHERN 1 QN 654 of 1990

E OF 0 - 1

RE:  DNNOR JAMES HORLEY

EX PARTE: XW ABOVEN&S!2

(Applicant)

RING lQIlEENSLANDI PTY. LTD.

(Respondent)

a:	PINCUS J.
M:	BRISBANE

m: 18 OCTOBER 1990

ONS FOR JUD-

This is a bankruptcy matter and I am giving the reasons of the Court orally because the hour is late. The reasons will be typed up and I will direct that a copy of them be sent to the parties, i.e. to Mr. Young appearing for Hastings Deering, and to Mr. Horley. I would ask my associate to make sure he has Mr. Horley's correct address.

The application which Mr. Horley makes is for an

order "that the judgment granted by Judge Daly on Wednesday 23
August 1990 at the District Court, Cairns, be set aside".
I am quoting from the application. There is some difference
of view as to when his Honour, in fact, gave judgment, and
indeed the form of judgment which is on the Court file is
drawn as if the judgment were granted by the Registrar. (It
is, in fact, dated 25 August, not 23 August.)

It appears that what happened was that there was

some misunderstanding between the Registrar, W . Bingham, and

W. Horley. . Bingham has helpfully written a letter which

sets out his recollection of events. There does not seem to be any doubt that Mr. Horley wished to have a trial, and because he was under the impression that the matter would either be adjourned or he would be notified, there was no trial because he did not attend. The circumstances are such that Mr. Young has very fairly said that perhaps there was some difficulty, and it seems to me unlikely that the Court could make Mr. Horley bankrupt in these circumstances. That is, when he, through some misunderstanding, and apparently not through his fault, missed out on a trial.

The course which the Court could take would be to set aside the bankruptcy notice and I had considered doing that. In the circumstances, however, I propose to adjourn this application because it is possible that the matter could be more appropriately dealt with by the parties agreeing to

the setting aside of the District Court's judgment, and	agreeing to a trial in the District Court. That is the Court
which properly has jurisdiction in the matter. Mr. Young has not committed himself to the course of agreeing to the judgment's being set aside, but it would seem to me, in the circumstances, that it might be a proper course for his client to consider. If in the result, the judgment is not set aside in the District Court, then it will be necessary to consider
the matter further in this Court, and for that purpose I propose to adjourn it for further hearing before me on Monday, 26 November, at 9.15 am. The costs of today will be costs in the proceedings.

I certify that this and the two preceding pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus.

c- ~ s s o c i a t 5

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