Lindfield, T.G. v Westpac Banking Corporation Ltd - [1994] FCA 190

TERRY GEORGE LINDFIELD v. WESTPAC BANKING CORPORATION LIMITED
No. P 3409 of 1993
FED No.190/94
Number of pages - 12
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT
OF THE STATE OF NEW SOUTH WALES
EINFELD J

CATCHWORDS

Bankruptcy - sequestration - failure to pay pursuant to consent settlement of court proceedings - debtor seeks to set aside settlement - whether hearing of creditor's petition should be adjourned to allow debtor to pursue application to set aside

Harvey v Phillips (1956) 95 CLR 235

Paino v Hofbauer (1987) 13 NSWLR 193

General Credits Ltd v Ebsworth (1986) 2 Qd R 162

Huddersfield Banking Co Ltd v Henry Lister and Son Ltd (1895) 2 Ch 273

National Benzole Co Ltd v Gooch (1961) 1 WLR 1489; (1961) 3 All ER 1097

Purcell v F.C. Trigell Ltd (1971) 1 QB 358

Siebe Gorman and Co Ltd v Pneupac Ltd (1982) 1 WLR 185; (1982) 1 All ER 377

HEARING

SYDNEY, 1-2 March 1994
#DATE 13:4:1994

Counsel and solicitors for Mr S. White instructed by
the applicant John M. Fitzgerand and Assoc.

Counsel and solicitors for Mr P. Dowdy instructed by
the respondent Henry Davis York

Mr O'Halloran, Creditor appeared in person

ORDER

The Court orders that the creditor's petition be adjourned to 8 June 1994 before a Registrar.

In the event that the debtor does not at any time pursue his

Supreme Court proceedings with vigour, the respondent to have liberty to apply on one week's notice by affidavit to have the petition restored to the list for hearing.

Costs of the application for the adjournment to be costs in the

cause.

Note:Settlement and entry of orders are deal with in accordance with Order 36 of the Federal Court Rules.

JUDGE1

EINFELD J Westpac Banking Corporation Limited (Westpac) has presented a creditor's petition for the sequestration of the estate of Terry George Lindfield (the debtor). The petition is based upon the failure to comply with a fourteen day bankruptcy notice which sought the payment of $2,233,644.25 being the amount (plus interest) the debtor was ordered to pay to Westpac by the Commercial Division of the Supreme Court of New South Wales on 15 February 1993 in a settlement of proceedings to which the debtor was a party (the proceedings). The petition is opposed by the debtor. The initial grounds of opposition dated 30 November 1993 claimed that relevant documents were not served personally on the debtor but a fresh notice of opposition, filed on 1 February 1994, gave as the grounds:

1. I am making application to Appeal to the Supreme Court of New South Wales the judgement in the matter in the Commercial Division No. 50015 of 1992 heard on February 15, 1993.

2. The Proof of Debt is prejudiced. Evidential material supporting my mental inability to comprehend and sign the bank guarantee due to a cerebral injury and post-traumatic epilepsy was not accepted by the Court. My legal advisors had not adhered to the Court's timetable for presentation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lindfield, T.G. v Westpac Banking Corporation Ltd

Details

AGLC: Lindfield, T.G. v. Westpac Banking Corporation Ltd [1994] FCA 190
Case: [1994] FCA 190
Decision Date: 13 APRIL 1994

CaseChat Overview and Summary

Lindfield, T.G. has brought an application to the Supreme Court to adjourn a hearing of a creditor's petition lodged by Westpac Banking Corporation Ltd, seeking to have the debtor declared bankrupt. The underlying dispute concerns the debtor's failure to pay amounts pursuant to a consent settlement of court proceedings. The debtor now seeks to set aside the consent settlement and argues that the hearing of the creditor's petition should be adjourned to allow him to pursue this application.

The central legal issue before the court was whether the creditor's petition should be adjourned to enable the debtor to pursue his application to set aside the consent settlement. The court had to weigh the debtor's right to have his application heard against the urgency of the creditor's petition and the potential prejudice to the creditor if the petition was adjourned.

The court determined that the creditor's petition should be adjourned to allow the debtor to pursue his application to set aside the consent settlement. The court emphasised the importance of allowing the debtor to fully litigate his application without being prejudiced by the urgency of the creditor's petition. The court also noted that if the debtor did not pursue his application with due diligence, the respondent would have the liberty to apply to have the petition restored to the list for hearing. The court further ordered that the costs of the application for the adjournment be costs in the cause.

The court's final orders were that the creditor's petition be adjourned to 8 June 1994 before a Registrar, with the condition that if the debtor did not pursue his application with due diligence, the respondent could apply on one week's notice by affidavit to have the petition restored to the list for hearing. Additionally, the costs of the application for the adjournment were to be costs in the cause. The settlement and entry of orders were to be dealt with in accordance with Order 36 of the Federal Court Rules.

Orders

Orders of the court

The Court orders that the creditor's petition be adjourned to 8 June 1994 before a Registrar.

In the event that the debtor does not at any time pursue his

Supreme Court proceedings with vigour, the respondent to have liberty to apply on one week's notice by affidavit to have the petition restored to the list for hearing.

Costs of the application for the adjournment to be costs in the

cause.

Note:Settlement and entry of orders are deal with in accordance with Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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