John v Pongrass Operations Pty Ltd Ex Parts

[1988] FCA 418

Not tor dlstrlbutlon

IN THE	FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	1	QLD PET NO. 782 Of 1988
BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF QUEENSLAND )

RE: JOHN TURNBULL

Debtor

EX PARTE: PONGRASS

OPERATIONS PTY.LTD.

Creditor

SPENDER J.
BRISBANE

22 JULY 1988

This is an appllcation made to the Court on behalf of

John Turnbull, who was the respondent to a creditor's petition

No.182 of 1988. The application before me 1 s that the sequestration order made by Deputy District Registrar Allen this mornlng be rescinded, or, alternatlvely, discharged.

his wife, Carolyn Turnbull, had slgned an authority pursuant to 5.188 of the Bankruptcy Act 1966. Thls authorized one Peter

The basis of the application seems to be, as deposed to

by the affidavits of Robert Douglas Backstrom and Brett St. Clair Bolton that, notwithstanding the service of a creditor's petltion on Mr. Turnbull on 29 June 1988, returnable on 22 July 1988 (this

morning), the facts were that on 15 July 1988 Mr. Turnbull and

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2. . . - .-

David Rodgers, a member of the firm of Love and Rodgers, of St. Martin's Tower, 31 Market Street, Sydney, to call a meeting of the creditors of Mr. and Mrs. Turnbull pursuant to Part X of the Bankruptcy Act 1966, and to take control of their property in accordance with that part. A further basis deposed to is that a meeting of creditors pursuant to that authority had been called for and will be held on Thursday, 11 August 1988 at 2.30 p.m. No notices of that meeting have, as yet, been despatched to the creditors of Mr. and Mrs. Turnbull.

That is the extent of the material touching upon the reasons why the sequestration order made this morning by Deputy Registrar Allen, pursuant to s.31A of the Bankruptcy Act 1966 should be rescinded or discharged. Mr. Backstrom deposes that this mornlng before the Registrar he told Mr. Allen that the debtor had entered lnto an arrangement with creditors which required a meetlng of creditors to be held and that an adjournment was sought of the petltloning creditor's petition so that the meeting might go ahead. Solicitors for the petitioning creditor informed the Deputy Registrar that their instructions

were to proceed with the petition. The material shows that the
Deputy Registrar said that there was not sufficient grounds on the material before him to order an adjournment of the petitlon, and he proceeded to make a sequestration order.

The matter seems to me to be clear. The basis of the

application for an adjournment before the Registrar was that authority under s.188 had been signed and that in the near future a meeting of creditors would be called. In those circumstances, it was suggested to the Deputy Registrar that it would be a

proper exercise of his discretion to adjourn the matter so as to

enable the view of the creditors at that meeting to be

determined, and that it would be wrong to frustrate whatever their views might ultimately turn out to be by the making of a sequestration order today.

In my view, it is clear that a petitioning creditor is

entitled to hls order if every other circumstance in relation to

the making of that order has been satisfied and that he is not to be held out of the benefits of such an order by the fact that the debtor has, a short time before the hearing of the petition, signed an authority under 5.188 summoning a meeting of his

creditors pursuant to Part X of the Bankruptcy Act 1966.

There has been no reason advanced why the making of the

sequestration order 1s not otherwise proper. In those

circumstances, it seems to me that authorlty calls for the

conclusion that it would be a wrong exercise of the discretion to ~.
hold a petltioning creditor out from his order simply because the

debtor had slgned a section 188 authority a short time before the

return date of the petition.

In those circumstances, I decllne to make any order on

the application to me by	the debtor and in the circumstances I
dismiss the application with costs	to be taxed if not agreed.

I certify that hls and the 4 preceding

pages are a true copy of the reasons for
judgment herein of His Honour