McCracken v Phoenix Constructions (Qld) Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

McCracken v Phoenix Constructions (Qld) Pty Ltd [2012] QCA 5

PARTIES:

JARROD McCRACKEN
(appellant)
v
PHOENIX CONSTRUCTIONS (QLD) PTY LTD
(respondent)

FILE NO/S:

Appeal No 6056 of 2011
SC No 5615 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Stay Application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED EX TEMPORE ON:

9 February 2012

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2012

JUDGES:

Fraser JA

ORDER:

Delivered ex tempore on 9 February 2012:

1. Application for adjournment refused.

2. Costs of application to be reserved.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – where the respondent seeks to vacate the hearing date for the appeal – where respondent is concerned that appellant may be made bankrupt before the appeal hearing – where respondent is concerned about wasted costs in preparing and attending the hearing of the appeal if appellant made bankrupt prior to appeal hearing – where respondent has existing order as to security for costs – prejudice to appellant due to unavailability of counsel if adjourned – public interest in the litigation proceeding at an appropriate pace – whether the appeal hearing should be adjourned

Phoenix Constructions (Qld) Pty Ltd v McCracken [2011] QCA 259, considered

COUNSEL:

D D Keane for the appellant
C D Coulsen for the respondent

SOLICITORS:

Walsh Halligan Douglas for the appellant
Connolly Suthers for the respondent

FRASER JA:  The respondent seeks to vacate the hearing date for this appeal, which is 29 February this year.

The respondent is concerned that the appellant may be made bankrupt in the near future, possibly at an adjourned hearing in the Federal Magistrates Court on 22 February, that is to say, one week before the date appointed for the hearing of this appeal. There is a dispute between counsel as to whether or not there might be an order for sequestration on that date or whether or not only some preliminary matter will be determined. It is not necessary for me to resolve that dispute.

The respondent is naturally concerned that it might waste substantial expenditure in preparing for and attending the hearing of the appeal in the event that the appellant is made bankrupt and the appeal does not proceed.

The respondent issued its bankruptcy notice in reliance upon the judgment challenged in the appeal, a judgment given on 15 June 2011, for more than $2 million. The respondent contends, and the untested evidence supports the contention, that in the bankruptcy proceedings in the Federal Magistrates Court the appellant misled that Court about the extent of the appellant's debts. In particular, there is evidence that the appellant claimed in an affidavit that its indebtedness was as he had disclosed, whereas a company known as Australian Unity Funds claims that the appellant owes it a debt of $18 million.  That claim only became known to the respondent after the Federal Magistrate had reserved his decision concerning either an interlocutory application or the sequestration…