Kovac v Taylor

[1998] FCA 835

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7999  of   1997

BETWEEN:	ROMAN KOVAC APPLICANT
AND:	GREGORY TAYLOR RESPONDENT
JUDGE(S):		MADGWICK J
DATE OF ORDER:		8 MAY 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The petition is dismissed.

2. The applicant Bank is to pay the respondent's costs of the motion.

3. Order 1 is stayed until 5 pm on 11 May 1998.

4. Leave granted to the Bank to make an application for any further stay upon four hours’ telephone notice to the respondent to the motion.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7999 of 1997

BETWEEN:	ROMAN KOVAC APPLICANT
AND:	GREGORY TAYLOR RESPONDENT

JUDGE:	MADGWICK J
DATE:	8 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR: On 15 April 1998 in this matter I determined not to permit the substitution of the State Bank of New South Wales ("the Bank") as petitioning creditor in a bankruptcy petition presented against Mr Taylor ("the respondent") which petition had originally been presented by Mr Kovac, and I indicated that I would in the circumstances dismiss the outstanding petition.

The detriment to the Bank of my so doing was referred to before me in argument and that detriment consisted of, or included, the loss by the Bank of the earlier relation back period that it would have rather than if it were to present a new petition.  Mr Climpson, who appeared for the Bank, was then unable to indicate to me that there was reason to fear actual prejudice as distinct from potential prejudice in that regard.  It seemed to me that, if there were some actual prejudice that could be shown by the Bank, then a case might exist for adjourning the proceedings to permit Mr Climpson to re-open them and to call some expert evidence to enable the estimation of the excess of Mr Taylor's alleged indebtedness to the Bank over the actual value of the security held by the Bank.  I adjourned the matter for a couple of days to enable that to be done.  Mr Climpson was then unable to point to any actual prejudice but sought to have the matter relisted for the purpose of applying to re-open and re-argue the case.

He has made that application today.  He has referred me to the case of Re O'Leary; Ex parte Bayne (1985) 61 ALR 674, and has suggested that my earlier decision proceeded per incuriam for want of knowledge of that decision which, it is said, is to the contrary of what I decided.  It seemed to me that it might be unfortunate if I had given a decision without being informed of all relevant legal authorities, and that the position of Mr Taylor might be accommodated as well by my requiring the Bank to pay the costs of today and permitting the matter to be re-argued here, as by leaving the Bank to any remedy that it might have on appeal.  However, Mr Taylor, through his counsel Mr Aitken, takes the view that he would prefer to take his chances on appeal and points out that, in any event, Mr Taylor should have his costs in connection with the hearing today.  That approach as to costs is indeed difficult to resist.

In the circumstances therefore I see no reason to re-open this matter.  It would be different if the matter appeared unarguable, but it does not appear to me that my decision of 15 April was unarguably wrong.  It appears to me to be quite arguable at least that the estimate of the value and of the excess in a case such as this must be made by admissible or at least cogent evidence in the usual case.  There may be cases where, for one reason or another, it is impossible to have the extant value of the security estimated by a person whose estimate is worth listening to.  But this has not been shown to be one such case.

As I expressed a final view; because the Bank had plenty of opportunity to put its case; because there should be an end to the litigation; because it is a matter of usual concern to reputation and perhaps to commercial reputation and freedom to act to have bankruptcy proceedings hanging over one's head; and in view of the attitude of Mr Taylor, I think I should decline leave to re-open the matter.

Mr Climpson then asks that my order dismissing the petition be stayed for a short period to enable the Bank to institute an appeal and, assuming such institution, pending the hearing of the appeal.  As I pointed out in argument I would not expect that any such appeal could be heard for six months and the matters to which I have referred as to the onerous nature of dependency of bankruptcy proceedings need to be weighed against the otherwise cogent consideration to which Mr Climpson points.  As it is however a judgment of mine that is in issue, I think the proper course is that I make an order dismissing the petition; the applicant Bank is to pay the respondent's costs of the motion, and I stay the order dismissing the petition until 5 pm on 11 May 1998.  I give leave to the Bank to make an application for any further stay upon four hours telephone notice to the respondent to the motion.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate:

Dated:             8 May 1998

Counsel for the Applicant:	S Climpson
Solicitor for the Applicant:	Tzovaras and Company
Counsel for the Respondent:	L Aitken
Solicitor for the Respondent:	Holam Webb Solicitors
Date of Hearing:	8 May 1998
Date of Judgment:	8 May 1998