McIntyre, I.B. v Perkes R.D. & I.B.

[1990] FCA 207

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	) NO. G694 of 1989
1
GENERAL DIVISION	)

BETWEEN:  ITALA BELINDA McINTYRE

Applicant

AND :  RAYMOND DAVID PERKES

Respondent

No. G695 of 1989

BETWEEN:  ITALA BELINDA McINTYRE

Applicant

AND :  CLEMENT ANTHONY GYE

CORAM :	Davies J.
DATE :	24 April 1990
PLACE:	Sydney
proceedings Gye and Perkes obtained a judgment against Mrs	judgment against persons named Gye and Perkes, and in other against Gye and Perkes, they entered into compositions wlth
their creditors and that brought their affairs within the
jurisdiction of the Federal Court. One of the questions which arose for the consideration of the Federal Court in its bankruptcy jurisdiction was whether or not there was a set-off of the two liabilities.

REASONS FOR JUDGMENT

EX TEMPORE

This case is unusual. Mrs McIntyre obtained a

Hill J. at first instance ruled that there was no

such set-off. Subsequently, a Full Court, constituted by

Pincus, Gummow and von Doussa JJ. held, on 6 April 1990, that there was such a set-off for the purposes of the Bankruptcy Act 1966 (Cth). Messrs Gye and Perkes now wish to seek special leave to appeal to the High Court from that judgment, and have in mind that, the application for special leave will be heard by the High Court in August next.

In the meantime, while these proceedings were on

foot, there were proceedings in the Supreme Court of New South wales, and the proceedings in that Court are still current. Messrs Gye and Perkes seek to contend that certain

dispositions of property effected by Mrs McIntyre were

fraudulent dispositions contrary to s.37A of the

Conveyancing Act 1919 (NSW). In the course of those

proceedings, injunctions issued restraining Mrs McIntyre
from disposing of property, and restraining the Registrar

from registering certain transfers.

There are two elements in dlspute to the

injunctions. One is a matter which was ralsed by a lessee,
who is represented today by Mr Montgomery of counsel. The
lessee seeks to have a lease registered, and has sought
variation of the injunctions in the Supreme Court so that
that can be done, and that is not a matter which seems
presently to be a matter for my concern. It is conceded by
the parties that that is a matter which will be determined
by a judge of the Supreme Court.

The matter which concerns me is that, subsequent to

McIntyre to discharge the injunctions whlch had been
granted by the Supreme Court, the contention being put
forward that the judgment and the declarations made by the

the judgment of the Full Court, application was made by Mrs alleged against Mrs McIntyre by Gye and Perkes substantially evaporated, and that, if security were provided for whatever liability remained, no ground for the injunctions remains.

Arising from the course of argument before Brownie

J. of the Supreme Court, counsel for Messrs Guy and Perkes

apparently feared that his Honour would feel that he was

bound conclusively by the judgment of the Full Court of this

Court to hold that the llabillty alleged by Messrs Gye and

Perkes did not exist.

Mr Gray, counsel for Messrs Guy and Perkes, has

therefore sought an order which would make the judgment and
declarations of the Full Court ineffective until such time
as the High Court had had an opportunity to rule upon an
application for special leave.

The application was first brought on the footing that an order could be made under Order 35, Rule 3 of the Federal Court Rules, which provides that:-

"A judgment or order shall take effect on the

date on which it is pronounced or made, unless
the Court orders that it take effect at an

earlier or a later date."

Mr Gray asked me to make an order that the judgment of the

~ u l l Court take effect at a date some months hence, by which

time the application would have been considered by the High
court.

This is not a matter which a single judge of the

court may do. If any such order was to be made, it would

have to be an order made by the Full Court whlch itself gave

judgment and, if the order were to be made after judgment

had been given, it would have to be made at a time prior to
the taking out of the order of the Full Court, at a time
when the Full Court still had power to vary any order which

it had made.

No application having been made to the Full Court

and the application being made to a single judge, it is

clear that, on that basis, the application cannot be upheld.

Mr Gray then orally sought an order to the effect

that the implementation of the judgment of the Full Court
should be stayed until the High Court had had an opportunity
to rule upon the application for special leave.

That is a matter within the jurisdiction of the a stay of execution, and such an order is properly made, either by the Full Court or by a slngle judge when it is proper to stay an order so that a party may litigate the matter before the High Court. Federal Court and it is a matter in respect of which a single judge may exercise the jurisdiction of the Court.

However, it is difficult to see in the present

instance why such an order is required of this Court. implementation of the judgment of the Full Court so as, in

effect, to restore the judgment of Hill J.. The Full Court

has ruled upon the matter, has expressed its opinion and has made declarations accordingly, and that is the present state of affairs between the parties.

Secondly, there is no matter before the Federal

Court in respect of which a stay would be appropriate. The

judgment of the Full Court properly determined the matter of the decision of the judgment of the Full Court.
for the present, so far as the composition is concerned, and
there is no matter arising out of the bankruptcy of Messrs

Mr Gray then put to me reasons why his clients

required an injunction at this stage and why an injunction should run until the High Court had finally ruled upon the application for special leave. However, that seems to me to

be a matter which is within the jurisdiction of the Supreme that Court.

The Supreme Court of New South Wales had juris-

diction to grant the injunctions which it granted; and it
has jurisdiction to continue them. It granted the
injunctions and continued them while the application for a
declaration was made to a single judge of this Court and
while the appeal was on foot, and it continues to have
jurisdiction to grant the injunctions pending the appeal to

the High Court.

Whether the Supreme Court should continue the

injunctions is a matter of discretion for a judge of the

Supreme Court. It seems to me that I should not enter upon

the matters which go entirely to the Judge's discretion.

Any order I am now asked to make would simply cloud the issue.

If I were to make an order staying the implement-

ation of the judgment of the Full Court, the order could be taken as an indication from the Court that there is a doubt about that judgment. It is not for me to express any doubt about the judgment. One may accept that, involved in the

complicated issue discussed by the Full Court, there is a case that can be put to the High Court for special leave, but that arises simply from the nature of issue.

It would be most inappropriate for me to take any

action which would convey to a judge of the Supreme Court a view that there is any doubt about the judgment of the Full Court. At the present time, so far as this Court is

concerned, that judgment stands.

For these reasons, it seems to me that there is no

need for this Court to make any order and it would be has jurisdiction to deal with it, and the matter is within the discretion of a judge of that Court.

inappropriate for an order to be made. The Supreme Court of

The application will therefore be dismissed.

Mr Garling's clients should have their costs on the

usual basis and Mr Montgomery's clients should also have

their costs. It seems to me that they were interested
parties. It was proper that they should attend as they were
affected parties. Notwithstanding Mr Gray's contention that
his first order sought was not in the form of an in-~unction;
nevertheless, in the course of the proceedings which have
gone over three days, there have been varlous injunctions
discussed, including the injunction granted by Rogers J.
against the Registrar. I think it was very sensible for

Mr Montgomery's parties to be represented.

Accordingly, Messrs Gye and Perkes should pay the

costs of the parties represented here today.

I certify that this and the 7 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Davies.

Associate: (s$RQ1..-w~	U
Date:	24 April 1990