National West Finance Australia Ltd v Jackson, R.W

[1987] FCA 118

3ut\clgs1:1ent No. // ...... 8 . . r* !- ...

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	)
BANKRUPTCY DISTRICT OF THE SOUTHERN	)
DISTRICT OF THE STATE OF OUEENSLAND	)

RE: JOHN WILLIAM JACKSON AND MAXENE SUSAN JACKSON

M PARTE: NATIONAL WESTMINSTER FINANCE AUSTRALIA

LIMITED

QLD PET P1337 of 1986

RE: JOHN WILLIAM JACKSON

EX PARTE: NATIONAL WESTMINSTER FINANCE AUSTRALIA

LIMITED

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	3 FEBRUARY 1987
WERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The hearing of the petitlon be adjourned further until 13 March 1987.

2 . The costs of the petitioning credltor, National

Westminster Finance Australia Limited, and of the

intervening creditor, Stirling Industries Limited,

being costs of and incidental to the appearance

today be given priority and treated as If they were

petitioning creditor’s costs falling under

s.l09(l)(a) of the Act.

3. The costs of and incidental to the hearing before

Mr. Justice Spender on 20 November 1986 incurred by

Stirling Industries Limited be glven priority and

treated as if they were petitioning credltor’s

costs falling under s.l09(l)(a) of the Act.

m: Settlement and entry of orders is dealt with in

Rule 124 of the Bankruptcy Rules.

IN THE FEDERRL COURT OF AUSTRALIA	)
GENERAL DIVISION	)

BANKRUPTCY DISTRICT OF THE SOUTHERN )

DISTRICT OF THE STATE OF OUEENSLAND )

QLD PET P788 of 1986

RE: JOHN WILLIAM JACKSON AND MAXENE SUSAN JACKSON

EX PARTE:

NATIONAL WESTMINSTER FINANCE AUSTRALIA

LIMITED

QLD PET P1337 of 1986

RE: JOHN WILLIAM JACKSON

EX PARTE:

NATIONAL WESTMINSTER FINANCE AUSTRALIA

LIMITED

PINCUS J. 3 FEBRUARY 1987

EX TEMPORE REASONS FOR JUDGMENT

This is an application for adjournment of a creditor's

petition. The circumstances relating to it are set out in reasons

for judgment given by Mr. Justice Spender on 20 November 1986, and

I do not propose to recapitulate them. The essence is that one

creditor of Mr. John William Jackson, namely, National Westminster

Finance Australia Limited, has petitioned and desires that Mr.

Jackson be made bankrupt. Another intervening creditor, namely,

Stirling Industries Limited, receivers and managers appointed,

takes the view that its interests and, it says, those of other

creditors, will be best served by the petition being adjourned.

2 .

Since the matter was before Mr. Justice Spender on 20

November 1986, the circumstances appear to have changed only in

one respect, namely, in that the High Court of Australia has given

special leave to appeal against the judgment of the Full Court of

this court upholding the order of Mr. Justice Sheppard, that order

having been made on 23 April 1986. The substantive hearing of the

appeal to the High Court is shortly to take place and the only

question which I have to consider is whether the petition should

be further adjourned until a date after that hearing.

It seems to be agreed that if it is to be ad~ourned, a

convenient date is 13 March 1987.

The arguments which have been put forward by Mr.

Sullivan on behalf of the petitioning credltor are much the same

as those whlch were dealt with at length by Mr. Justlce Spender.

Counsel for the petitioning creditor has emphasized that it 1 s

difficult to predict the future course of events. There may, for

example, be conslderable delay in the High Court‘s reaching a

conclusion, and he places rellance on the awkwardness of perhaps

adjourning the petition again and agaln, waiting for the High

Court‘s decision. That argument was, however, one whlch was

undoubtedly placed before	Mr. Justice Spender. His Honour said at
p.25 of his reasons:

“I am of the view that, on balance, it would better

serve the interests of the creditors generally if

the hearing of the petitioning creditor’s petition

be adjourned so as to enable the opportunity of the

committal proceedings to be further explored

without the shackles that would attend that

3 .

application if a sequestration order were now

made. "

If it is correct (and I think I should assume that it

is) that the interests of the creditors were better served by

adjourning the matter in November, unless some supervening factor

has come into existence to make it clear that a further

adjournment is inappropriate, I think I should adopt the same

attitude as did Mr. Justice Spender and, rather than attempt to

rebalance the nebulous possibilities, should adjourn the matter

further.

I would add that I do so on the assumption that it is

likely that the result will be that the matter will be adjourned,

if necessary, from time to time untll the High Court's decision is

known. However, It is plain that I cannot bind the court to do so

on any future occasion and I do not undertake, myself, to do so,

if I am the one who has the task of determining whether	it should
be further adjourned.

It will therefore be ordered that the hearing of the

petitlon be adjourned further until 13 March 1987. Each of the parties before me - that is, the petitioning creditor and the intervening creditor, Stirling Industries Limited, receivers and

managers appointed asks for an order that the costs of and

incidental to the appearance today be given priority. I think I

should do that and will order that those costs be treated as

petitioning creditor's costs in the proceedings,	so	as to fall
within s.l09(l)(a) of the Act.

4 .

I further direct that the costs of and incidental to the hearing before Mr. Justice Spender on 20 November 1986 incurred by

Stirling Industries Limited and reserved by his Honour be similarly treated; that is, be treated as if they were petitioning

creditor's costs falling within s.l09(l)(a) of the Act.