Jackson, J.W. v Nat. West Finance Australia Ltd

[1987] FCA 384

IN THE FEDERAL COURT OF AUSTRALIA	1
GENERAL DIVISION	)
BANKRUPTCY DISTRICT OF THE SOUTHERN )

' DISTRICT OF THE STATE OF OUEENSLAND )

QLD P788 of 1986

RE: J O H N WILLIAM JACKSON and MAXENE SUSAN JACKSON

M PARTE:

NATIONAL WESTMINSTER FINANCE AUSTRALIA

LIMITED

QLD P1337 of 1986

RE: JOHN WILLIAM JACKSON

EX PARTE: NATIONAL WESTMINSTER FINANCE AUSTRALIA

LIMITED

MINUTES OF ORDER

JUM;E MAKING ORDER:	PINCUS J.
DATE OF ORDER:	6 JULY 1987
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

The costs of National Westminster Flnance Australia

Lirnlted, limited to the sum of $2,000, be paid as

petitioning creditor's costs under s.l09(l)(a)	of
the Bankruptcv Act.

NOTE:

Settlement and entry of orders is dealt with in

Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT	OF AUSTRALIA	)
GENERAL DIVISION	)

BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF OUEENSLAND )

QLD P700 of 1986

RE: JOHN WILLIAM JACKSON and MAXENE SUSAN JACKSON

M PARTE: NATIONAL WESTMINSTER FINANCE AUSTRALIA

LIMITD

QLD P1337 of 1986

RE: J O H N WILLIAM JACKSON

M PARTE: NATIONAL WESTMINSTER FINANCE AUSTRALIA

LIMITED

PINCUS J. 6 JULY 1987

EX TEMPORE REASONS FOR JUM;MENT

In this matter a rather complicated dlspute has arlsen

with respect to costs. There are the costs of two partles

Involved. One 1s Natlonal Westmlnster Finance Australla Limlted,

which has issued two petitions, and the other 1 s Sterllng

Industries Limited (Receivers and Managers Appointed).

It seems to me that, insofar as Sterllng Industries

Limited's costs are concerned, they really depended upon success

in the petition. As has been pointed out, the orders which have

been made did not entitle them to any costs; they merely entitled

them to have such priority	as the petitioning creditors got under
s.l09(l)(a).

2 .

The question whether they get any costs at all is

another matter. Their purpose seems to have been to achieve the

result, as Mr. Sullivan has said, of forcing a disgorgement of the

$3 million otherwise than through bankruptcy proceedlngs, and I

think he is correct in saying their purpose has failed, through no

fault of theirs really, but it	has failed because of the	Hlgh
Court's order.

The position of the petltioning creditor is complicated

by the fact that it issued two petitions because of its

uncertalnty as to whether	or not it could succeed on one of them
only.

The other complication, of course, 1 s that in the end It

has not got a sequestration order, and therefore the orders whlch

I previously made, as maklng provision for its lnterlm costs, are

dependent upon its gettlng costs as the successful petltlonlng

credltor .

There 1 s some justlce, it seems to me, In the

petitlonlng credltor's case, in that it dld not have any certainty

of a bankruptcy ensuing, the debtor's petltion havlng been held up

by the order made enjoining acceptance of it. That order was made

because it was thought designed to prevent the order as to payment

into court having effect, and the purpose of the petitioning

creditor was to cut through all that and achieve an earlier

bankruptcy, a purpose in which it substantially failed.

P

.	9’
v 3.

On the whole, I think that I should make these orders,

and they are the orders I will make: that as to the costs of

National Westmlnster Finance Australia Limited, I order that those

costs, limited to the sum of $2,000, be paid as petitioning

creditor‘s costs under s.l09(l)(a) of the BankruptCV Act, so that

it will have priority In respect of those costs, limited to

$2,000, as if rt had successfully petitroned.

In the circumstances, I do not propose to make any order

for costs in respect of Sterling Industries Lrmited (Receivers and

Managers Appointed). It wlll have to bear its own costs.