Kenneth Dudley Taylor v Natwest Australia Bank Limited

[1992] FCA 726

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- CATCHWORDS

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BANKRUPTCY - proceedings in connection with sequestration - I

whether stay of execution of sequestration order should be	i.
granted pending appeal when appellant is not an Australian	I
resident.
KENNETH DUDLEY TAYLOR v NATWEST AUSTRALIA BANK LIMITED No. NG 474 of 1992
FOSTER J 14JULy 1992 SYDNEY

PRINCIRRL

2 - OCT 1992

a R * L OWRT OF

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 474 of 1992
BANKRUPTCY DIVISION	1

BETWEEN:  KENNETH DUDLEY TAYLOR

Appellant

AND :  NATWEST AUSTRALIA BANK
LIMITED

Respondent

JODGE PW~ING ORDERS: FOSTER J

DATE:	14 JULY 1992
PLACE :	SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1.    proceedings under the sequestration order made by Lockhart J on 24 June 1992 against Kenneth Dudley Taylor be stayed for two months;

2. both parties be granted libe;ty to apply at two

day's notice;

3.   the costs of this notice of motion be costs in the appeal.

Note:  Settlement and entry of orders is dealt with in
Rule 124 of the Bankruptcy Rules.

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LIMITED DISTRIBUTION

IN THE FEDERLL COURT OF AUSTRALIA )

1

NEW SOUTH WSES DISTRICT REGISTRY ) No. NG 474 of 1992

1

BANKRUPTCY DIVISION 1

BE!CWEEN:  KENNETH DUDLEY TAYLOR

Appellant

AND :  NATWEST AUSTRALIA BANK
LIMITED

Respondent

CORAM:	FOSTER J
DATE :	14 JULY 1992
PLACE :	SYDNEY

REASONS FOR JUDGMENT

(Extempore )

HIS HONOUR: In this matter Lockhart J made a sequestration order against the estate of the appellant on 24 June 1992. The sequestration order was based upon the commission of an

notice in respect of a judgment debt of a very substantial	act of bankruptcy, being a failure to comply with a bankruptcy
size. It appears that a main ground of opposition to the grant of the sequestration order was a contention on the part of the debtor that the Court lacked jurisdiction to make the order in so far as the debtor was not relevantly a resident of Australia at the time of the commission of the act of bankruptcy or at the date of the hearing 05 the petition.

His Honour stayed the execution of the sequestration order for-a period of 21 days in order that consideration might be given to the question of appeal in that period. Consideration has accordingly been given and that has resulted in the lodging of a notice of appeal together with a notice of motion for a further extension of the stay of execution. The notice of motion has been opposed on behalf of the judgment creditor on the basis that the appeal is essentially a weak one. By that I apprehend that it is submitted that the prospects of success are so limited as not to warrant the further stay of the sequestration order. However, in a notice of motion of this kind it is, of course, most difficult to make a determination as to the prospects of success.

The notice of appeal is a carefully drawn document. It raises matters which were argued before Lockhart J going to the question of whether residence was established or not. It appears that there was no oral evidence given before his Honour. Clearly enough, one of the reasons for that was the

the result that affidavits sought to be read on his behalf	failure of the debtor to attend for cross-examination, with
were rejected. The debtor has appeared through counsel and solicitor today. The Court has been assured that the appeal is a bona fide appeal and that the points raised in the notice of appeal are indeed sought to be argued.

In all the circumstances, I think .. it reasonable that

there should be an extension of the stay granted by

Lockhart J. It is essential, however, that supervision should be exercised over this case to ensure that the appeal is prosecuted with all due expedition. If that should not occur, then quite clearly the judgment creditor's rights to have the stay removed and the sequestration order implemented would revive. It appears that an appointment has been made in the ordinary way for the settling of an index for the appeal. That, of course, is an essential preliminary step and of itself an indication of the bona fides of the appellant in prosecuting the appeal. It has been suggested in argument by both sides that a suitable method of ensuring that the appeal does proceed bona fide with due expedition is to grant a stay for a limited period only. Indeed, that suggestion has been made on behalf of the appellant and accepted by the respondent, should the Court not accede to the respondent's main submission that the stay should not be extended.

Although I feel that such an order is perhaps

somewhat unusual, there are unusual features of this case.

course, that he is not an Australian resirdent. I think it	The appellant is not currently in Australia and contends, of
appropriate that the bona fides of the appeal be kept under reasonably close review in the interests of the rights of the judgment creditor.
I think under the circumstances and with the realisation that it is impossible to achieve a perfect C *
solution in this type of situation I will stay the execution
of proceedings under the judgment for a period of two months from today but I will also grant liberty to apply to either party on two days notice.
So far as costs are concerned, as the appellant is doing no more than exercising a right given to him by the decision of Lockhart J, I order that the costs of this notice of motion be costs in the appeal.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice M. L. Foster.

Associate:

Date :  14 JULY 1992

A P P E A R A N C E S

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COUNSEL FOR THE APPLICANT:	F.P. CARNOVUE
INSTRUCTED BY:	GILLIS DELANEY BROWN
COUNSEL FOR THE RESPONDENT:	M. WATSON
INSTRUCTED BY:	TRESS, COCKS & MADDOCKS
DATE OF HEARING:	14 JULY 1992
DATE OF JUDGMENT:	14 JULY 1992

?ad sa

JUDGMENT NO. ..m...... W-.-

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I	BANKRUPTCY - proceedings in connection with sequestration - whether stay of execution of sequestration order should be granted pending appeal when appellant is not an Australian resident.
i	I
KENNETH DUDLEY TAYLOR v NATWEST AUSTRALIA BANK LIMITED No. NG 474 of 1992
FOSTER J 14 JULY 1992 SYDNEY 2 - OCT 1992

pR!NCtPAL

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTFZALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 474 of 1992

1

BAliKRUPTCY DIVISION 1

BETWEEN :  KENNETH DUDLEY TAYLOR

Appellant

AND :  NATWEST AUSTRALIA BANK
LIMITED

Respondent

JUDGE &ING ORDERS: FOSTER J

DATE :	14 JULY 1992
PLACE :	SYDNEY

THE COURT ORDERS THAT:

1.    proceedings under the sequestration order made by Lockhart J on 24 June 1992 against Kenneth Dudley Taylor be stayed for two months;

2 .	both parties be granted libe;ty	to apply at two
day's notice;

3.    the costs of this notice of motion be costs in

the appeal.

Note:  Settlement and entry of orders is dealt with in
Rule 124 of the Bankruptcy Rules.

- -

LIWITED DISTRIBUTION

IN THE FEDEFSL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY )	NO. NG 474 of 1992
BANKRUPTCY DIVISION	1

BETWEEN :  KENNETH DUDLEY TAYLOR

Appellant

AND: NATWEST AUSTRALIA BANK

LIMITED

Respondent

C O M :	FOSTER J
DATE :	14 JULY 1992
PLACE :	SYDNEY

REASONS FOR JUDGMENT
(Extempore)

HIS HONOUR: In this matter Lockhart J made a sequestration order against the estate of the appellant on 24 June 1992. The sequestration order was based upon the commission of an

notice in respect of a judgment debt of a very substantial	act of bankruptcy, being a failure to comply with a bankruptcy
size. It appears that a main ground of opposition to the grant of the sequestration order was a contention on the part of the debtor that the Court lacked jurisdiction to make the order in so far as the debtor was not relevantly a resident of Australia at the time of the commission of the act of bankruptcy or at the date of the hearing oi the petition.
His Honour stayed the execution of the sequestration order for a period of 21 days in order that considerat'ion might be given to the question of appeal in that period. Consideration has accordingly been given and that has resulted in the lodging of a notice of appeal together with a notice of motion for a further extension of the stay of execution. The notice of motion has been opposed on behalf of the judgment creditor on the basis that the appeal is essentially a weak one. By that I apprehend that it is submitted that the prospects of success are so limited as not to warrant the further stay of the sequestration order. However, in a notice of motion of this kind it is, of course, most difficult to make a determination as to the prospects of success.
The notice of appeal is a carefully drawn document. It raises matters which were argued before Lockhart J going to the question of whether residence was established or not. It appears that there was no oral evidence given before his Honour. Clearly enough, one of the reasons for that was the
were rejected. The debtor has appeared through counsel and the result that affidavits sought to be read on his behalf failure of the debtor to attend for cross-examination, with
solicitor today. The Court has been assured that the appeal is a bona fide appeal and that the points raised in the notice of appeal are indeed sought to be argued.
In all the circumstances, I think it reasonable that there should be an extension of the stay granted by Lockhart J. It is essential, however, that supervision should be exercised over this case to ensure that the appeal is prosecuted with all due expedition. If that should not occur, then quite clearly the judgment creditor's rights to have the stay removed and the sequestration order implemented would revive. It appears that an appointment has been made in the ordinary way for the settling of an index for the appeal. That, of course, is an essential preliminary step and of itself an indication of the bona fides of the appellant in prosecuting the appeal. It has been suggested in argument by both sides that a suitable method of ensuring that the appeal does proceed bona fide with due expedition is to grant a stay for a limited period only. Indeed, that suggestion has been made on behalf of the appellant and accepted by the respondent, should the Court not accede to the respondent's main submission that the stay should not be extended. .. ..
Although I feel that such an order is perhaps somewhat unusual, there are unusual features of this case. The appellant is not currently in Australia and contends, of
course, that he is not an Australian resi2ent. I think it appropriate that the bona fides of the appeal be kept under
reasonably close review in the interests of the rights of the judgment creditor.
I think under the circumstances and with the realisation that it is impossible to achieve a perfect . -
solution in this type of situation I will stay the execution of proceedings under the judgment for a period of two months from today but I will also grant liberty to apply to either party on two days notice.
So far as costs are concerned, as the appellant is doing no more than exercising a right given to him by the decision of Lockhart J, I order that the costs of this notice of motion be costs in the appeal.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice M. L. Foster.

Associate:

Date:  14 JULY 1992

A P P E A R A N C E S

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COUNSEL FOR THE APPLICANT:	F. P. CARNOVALE
INSTRUCTED BY:	GILLIS DELANEY BROWN
COUNSEL FOR THE RESPONDENT:	M. WATSON
INSTRUCTED BY:	TRESS, COCKS & MADDOCKS
DATE OF HEARING:	14 JULY 1992
DATE OF JUDGMENT:	14 JULY 1992