New South Wales Aboriginal Land Council v Green
[2019] FCCA 2082
•24 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEW SOUTH WALES ABORIGINAL LAND COUNCIL v GREEN | [2019] FCCA 2082 |
| Catchwords: BANKRUPTCY – Bankruptcy Act 1966 (Cth) – creditor moves on a Creditors Petition for a sequestration order against the estate of a debtor pursuant to a judgment of the Supreme Court of New South Wales resulting from a costs assessment which ensued from an anterior order for costs – notice of opposition claiming a failure to properly serve the bankruptcy notice and seeking that this Court go behind the anterior reasons of the Supreme Court of New South Wales and find that it was not a debt actually owed by the debtor to the creditor – creditor’s evidence of service favoured to that of the debtor and service found to be validly effected – no sufficient reason shown to go behind the judgment of the Supreme Court of New South Wales on its own or as viewed through the prism of its anterior reasons - no sufficient reason shown to consider that the anterior reasons occasioned any miscarriage of justice or evidence a wrongful exercise of discretion – sequestration order made against the estate of the debtor – no basis for a stay under s.52(3) of the Bankruptcy Act 1966 (Cth). |
| Legislation: Bankruptcy Act 1966 (Cth), s.52 Civil Procedure Act 2005 (NSW), s.98 Bankruptcy Regulations 1966 (Cth) |
| Cases cited: Alam v QBE Insurance(Australia) Ltd [2018] FCA 1560 |
| Applicant: | NEW SOUTH WALES ABORIGINAL LAND COUNCIL |
| Respondent: | RICHARD GREEN |
| File Number: | SYG 2653 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing dates: | 7 June 2019 & 24 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Rose of Counsel |
| Solicitors for the Applicant: | Norton Rose Fulbright |
| Counsel for the Respondent: | Ms B. Nolan of Counsel |
| Solicitors for the Respondent: | Knightsbridge North Lawyers |
THE ORDERS OF THE COURT MADE ON 24 JULY 2019 ARE AS FOLLOWS:
The Notice of Opposition filed by the Respondent Debtor on 8 November 2018 is dismissed.
A sequestration order be made against the Estate of Richard Green, the Respondent Debtor.
The Applicant Creditor’s costs in the sum of $7,663.90 be paid from the bankrupt Estate of Richard Green according to the Bankruptcy Act 1966 (Cth).
A copy of this sequestration order be given to the Official Receiver in Sydney within two days.
The Court notes that the date of the act of bankruptcy is 17 August 2018.
These orders to be taken out forthwith.
AND THE COURT NOTES THAT:
Reserve the making of an order under Rule 36.03(b) of the Federal Court Rules 2011 (Cth) extending the time for any appeal until 28 days after the written Reasons for Judgment are available.
THE ORDER OF THE COURT MADE ON 30 JULY 2019 IS AS FOLLOWS:
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Respondent Debtor have up to and including 27 August 2019 to file any Notice of Appeal in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2653 of 2018
| NEW SOUTH WALES ABORIGINAL LAND COUNCIL |
Applicant
And
| RICHARD GREEN |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
By Creditors Petition presented on 19 September 2018 the Applicant (Creditor) seeks a sequestration order against the Estate of the Respondent (Debtor) pursuant to a judgment of the Supreme Court of New South Wales in its favour dated 19 April 2017 for $15,622.56 (Judgment, and where applicable Judgment debt) as a result of a costs assessment process under the Legal Profession Uniform Law Application Act 2014 (NSW) (Legal Profession Act) which ensued from an order for costs made on 12 August 2016 by McCallum J in the Common Law Division in proceeding number 14810 of 2016 (Supreme Court proceeding) and for which costs order her Honour delivered Reasons for Judgment bearing medium neutral citation [2016] NSWSC 1191 (anterior reasons).
The act of bankruptcy relied upon was the Debtor’s failure to comply, on or before 17 August 2018, with the requirements of Bankruptcy Notice 225006 issued on 15 June 2018 by the Official Receiver and claimed by the Creditor to have been served on him on 26 July 2018 (Bankruptcy Notice). Those requirements were that the Debtor pay to the Creditor the sum of $15,622.56, or otherwise make arrangements for settlement of that debt, within 21 days of service, namely by 17 August 2018.
On 8 November 2018 the Debtor filed a Notice of Opposition to the making of a sequestration order on three Grounds, the third Ground of which is not pressed. The first two Grounds are verbatim as follows:
1. The petition is defective for want of effective service of the Bankruptcy Notice BN 225006; and
2. Pursuant to Section 52 of the Act, an order that the ex tempore decision of McCullum J in United Land Council Ltd v NSWALC [2016] NSWSC 1191 in which the judgment is based is not founded on a debt that in truth and reality was or is owed by the Applicant to the Respondent and that the Court should exercise its discretion to go behind the judgment and consider whether the amount of the claimed debt as whole is actually owed by the Applicant to the Respondent.
Leaving aside the Notice of Opposition, the question of service of the Bankruptcy Notice and the affidavit in that regard of Ms Stephanie Massin, the Creditor relies upon a body of formal affidavit evidence which is, in my opinion, prima facie sufficient to prove its entitlement to a sequestration order against the Estate of the Debtor.
Background
It is not in dispute that at all material times the Debtor was the sole director of a company incorporated in New Zealand by the name of United Land Council Ltd (ULC), which on 13 May 2016 commenced the Supreme Court proceeding by filing a Statement of Claim in the Defamation List of the Common Law Division of the Supreme Court of New South Wales seeking, in short, damages against the Creditor for defamation.
The Statement of Claim was, as required by the applicable rules, verified by the Debtor as sole director of ULC by affidavit sworn on 12 May 2016, with his signature to that affidavit being witnessed by a solicitor for ULC.
Unfortunately for ULC and the Debtor, ULC was then deregistered by the New Zealand Companies Office on 15 July 2016 and therefore as a matter of law no longer existed as any form of legal entity and was no longer a proper Plaintiff in the Supreme Court proceeding: Sweeney & Vandeleur Pty Ltd v BNY Australia Ltd (1993) 11 ACSR 356 at 360 per Cole J. As Scrutton LJ said in Banque Internationale de Commerce de Petrograd v Goukassow [1923] 2 KB 682 at 691: “A non-existent person cannot sue”. Indeed evidence led by the Debtor suggested that the registration of ULC was void ab initio because as [8] and [9] of the affidavit of Mr Peterson sworn on 11 November 2018 deposed as follows:
[8] United Land Councils Ltd was incorporated in New Zealand. On 15 July 2016, the company was removed from the regist[er] by the New Zealand Companies Office. The removal is different from being struck off. Being struck off can be remedied, whereas a company that had been removed was considered void ab initio. It could not be reinstated. The company could therefore not continue to prosecute its claim.
[9] Neither Mr Green nor myself were aware of the action of the Registrar. Our inquiries revealed that the action had been taken because Mr Green had not taken up residence in New Zealand within the 12 month window permitted to do so. This was considered grounds to invalidate the incorporation of the company. Unsuccessful attempts were made to the Companies Office by Mr Green and myself by Knightsbridge North lawyers on our behalf.
In any event, on 5 July 2016, prior to the deregistration of ULC, a notice of motion was filed in the Supreme Court proceeding by which leave was sought by ULC to file the proposed Amended Statement of Claim attached to it, the effect of which would have been to join the Debtor as Second Plaintiff and who proposed at [10] of the proposed Amended Statement of Claim to claim that by reason of the Creditor’s publication of allegedly defamatory material he also had “been greatly injured in his reputation and has been held up to public ridicule, odium and contempt, and has suffered and continues to suffer loss and damage”.
However, before that notice of motion to join the Debtor was heard and determined the Supreme Court proceeding was dismissed by consent. In those circumstances the Creditor sought from McCallum J, who controls the Defamation List in the Supreme Court, an order that the Debtor pay the costs of the Supreme Court proceeding.
In her anterior reasons McCallum J decided that, pursuant to s.98 of the Civil Procedure Act (2005) (NSW), it was in the interests of justice to order the Debtor to pay the costs of the Supreme Court proceeding from the date of 5 July 2016, when the notice of motion was filed which sought that he be joined as Second Plaintiff. This order for costs thereafter led to an assessment of those costs resulting in the issuing of a certificate under s.70(1) of the Legal Profession Act and, upon filing of that certificate under s.70(5), the Judgment debt of $15,662.56.
Notice of Opposition
Ground 1
The Creditor contends that the Bankruptcy Notice was properly served as required by reg.16.01(1)(d) of the Bankruptcy Regulations 1966 (Cth) (Regulations) by being “personally delivered” to the Debtor on 26 July 2018 and relies on the affidavit of Ms Massin sworn on 30 October 2018. It is, of course, of very great importance that there be valid service of a bankruptcy notice on a prospective debtor because of the serious consequences of the making of a sequestration order against the relevant debtor. Further, of course, there are ramifications for all the other creditors of the relevant debtor when a sequestration order is made.
Paragraph 2 of the affidavit of Ms Massin, sworn on 30 October 2018, stated as follows:
[2] That I identified the person served by me as the said Richard Green by reason of the following statements made at the time of service:
I asked “Are you Richard Green?” The male person refused to answer me and threw his hands in the air. I then said “I have these bankruptcy documents for you”. He continued to ignore me and kept walking ahead. I caught up to him and stood in front of him showing him the photograph I had in my hand which is annexed hereto and marked “B”. I then said “I have identified you as Richard Green as per the photograph I have been provided of Richard Green. I now leave this document in your presence”. I placed the document at his feet. He proceeded to present his middle finger to me in a rude gesture. He then called out in a loud voice “OI” and photographed me.
In his affidavit of 6 November 2018 the Debtor said at [3] as follows:
[3] On 26 July 2018 an unidentified person approached me on the grounds of the Newcastle Court House that appeared to me to be a journalist and left a package on the floor approximately 1.5 metres away from me and made an undecipherable reference to it. I considered it to be related to the proceedings that I was attending to at the Court House and believed the woman concerned sought to by-pass my solicitors.
Further, at [5] of his affidavit of 6 November 2018 the Debtor said:
[5] I have not seen bankruptcy notice BN225006 until I agreed to receive service of the creditors petition by way of e-mail.
Both Ms Massin and the Debtor were cross-examined respectively by Ms Nolan of Counsel who appeared for the Debtor and Mr Rose of Counsel who appeared for the Creditor. Ms Massin was subject to a forthright cross-examination by Ms Nolan, but in my view gave her evidence clearly, persuasively and with an appearance of frankness and honesty. She was challenged with the earlier affidavit of service which she had sworn on the day of service itself, being 26 July 2018, which did not state that she had identified the documents she claimed to have served on the Debtor as “bankruptcy documents”.
She was naturally challenged on this discrepancy between her affidavit sworn on the day of service and the affidavit relied upon by the Creditor sworn some considerable time thereafter on 30 October 2018. In many cases such a discrepancy and such a time between the swearing of two affidavits, with the first affidavit omitting to state an important consideration raised in the second affidavit, would be very concerning, and that naturally led to Ms Nolan putting to Ms Massin that she was not telling the truth.
However, Ms Massin gave evidence before me in cross-examination that the second affidavit of 30 October 2018 resulted from a request of her employer to give a fuller and amplified version of what she had said at the time of service. She further said that it was her practice at the time of service to identify the nature of the document or documents she was about to serve when the party to be served was refusing to accept service.
In cross-examination Ms Massin said, consistently with [2] of her affidavit of 30 October 2018, at TP17:1 – 6 as follows:
Ms Nolan: What did you tell him that you had for him then, Ms Massin?
Ms Massin: I said “Hi, you’re Richard Green?” He put his hands in the air. I said “You are Richard Green; I have this photograph of you”. I showed him the photograph. I said, “I have these bankruptcy documents for you”. He looked me in the eye. He continued to walk. I ran around in front of him and I said “I now leave these documents in your presence”.
I accept Ms Massin’s evidence as to the circumstances of service of the Bankruptcy Notice on 26 July 2018.
The Debtor was cross-examined in relation to service. I regret to have to say that he was not impressive, either in the substance of his evidence or in his demeanour. I accept that, of course, judges are more reluctant these days to put any great stress on demeanour as a key to whether or not the truth is being told, but the fact of the matter is that in my view the Debtor was not an impressive witness. His cross-examination did not begin auspiciously because he, in fact, denied the last sentence of [3] of his own affidavit of 6 November 2018.
He asserted in cross-examination that Ms Massin had “chucked the document on the ground as he was going across the road”, which was a matter of fact not asserted in [3] of his affidavit. He agreed that he wanted to get away from Ms Massin “so she could not give” him any documents, but then denied that he had wanted to get away from her so she could not give him any documents.
Accordingly, where the evidence of Ms Massin and the Debtor are inconsistent in relation to service of the Bankruptcy Notice, I prefer the evidence of Ms Massin. In my view, that means that there has been effective service of the Bankruptcy Notice on the Debtor. I find that the Bankruptcy Notice was left physically near the Debtor so that if he so wanted he could have had immediate and unimpeded access to the Bankruptcy Notice, and thus he has been served consistently with the passage from the judgment of Gummow J in Re Ditfort; Ex parte Deputy Commissioner of Taxation (NSW) (1988) 19 FCR 347 at 360 where his Honour cited with evident approval a passage from the judgment of Patteson J in Thomson v Pheney (1832) 1 DPC 441 in the following terms:
I accept the submission by the respondent to the present application that there may be delivery personally to the debtor of process within the meaning of the [Bankruptcy Rules] … even though process has not been left in what Patteson J described as the “actual corporal possession of the defendant”. If the debtor were refusing to take such actual corporal possession of the process, if the process server informed the debtor of the nature of the process and left it before or near the debtor so that the debtor had unimpeded and immediate access to the documents that, in my view, should in general be sufficient to comply with the [Bankruptcy Rules].
I note that the Bankruptcy Rules considered by Gummow J were not materially different to reg.16.01(1)(b): see [10] above.
In my view, Ground 1 of the Notice of Opposition fails.
Ground 2
In my view the Creditor has established for the purposes of s.52(1) of the Bankruptcy Act1966 (Cth) (the Act) that the Judgment debt on which it relies is owing, that the Judgment is satisfactory proof of the Judgment debt, and there is no reason for questioning the existence of the debt, which is a true debt having been made on a proper basis and sufficient for the making of a sequestration order.
Mr Rose submitted that all I was entitled to have regard to in relation to going behind the Judgment was to the Judgment itself, rather than the anterior reasons of McCallum J which led to the process of assessment of costs. He relied in that regard on the decision of Colvin J in Kitay, in the matter of Frigger (No 2) [2018] FCA 1032 delivered on 20 July 2018, where at [31] – [35] his Honour stated as follows:
[31] The present case is concerned with a failure to pay the assessed amount pursuant to a costs order made in proceedings where the assessment takes effect as a judgment.
[32] An award of costs is discretionary, but must be exercised judicially, that is according to relevant considerations and taking account of the contextual features and facts of the litigation: Kazar (Liquidator) v Kargarian; In the matter of Frontier Architects Pty Ltd (In Liq) [2011] FCAFC 136; (2011) 197 FCR 113 at [4]. Settled principle guides the exercise of the discretion: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [38]. Generally, the discretion is exercised in favour of the successful party: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at [25]. So, a cost order usually follows the event, but need not do so.
[33] If the event is success on a monetary claim then proof of a debt arising from the costs order may be said to require proof of the underlying debt because costs follow the event on that claim. It is not necessary to consider whether this is so in this instance because the claim before Master Sanderson did not involve the adjudication of any claim in debt, or indeed any claim to a monetary award of any kind. Rather, the costs order relied upon by the petitioning creditors forms part of a judgment in proceedings in which orders were made concerning a confidential affidavit. The costs order is not any part of a determination in respect of an underlying debt.
[34] The result is that the debt relied upon by the petitioning creditors has no antecedent aspect in the sense that arose in the cases to which I have referred. Rather, the claimed liability was brought into existence solely by the costs order. Then the quantum of the debt was established by the assessment made by the Registrar in taxing the bill presented to the court. Upon that assessment a judgment in the assessed amount was brought into existence by operation of O 66 r 57 of the Rules of the Supreme Court.
[35] So, the petitioning creditors in this case do not rely upon the judgment of Master Sanderson to prove an underlying debt. They rely upon the making of the order and the assessment of the bill of costs presented pursuant to that order as the debt. Accordingly, care must be taken in simply assuming the existence of a broad jurisdiction to 'go behind' the decision of the court in which the costs order was made on the basis of the line of authorities considered in Ramsay Health Care. The question is whether a debt has been proved, not whether there should be some review of the exercise of the discretion to make the indemnity costs order or a reconsideration of the assessment undertaken on taxation of the bill of costs presented pursuant to that order.
Ms Nolan on the other hand relied on the later decision of Lee J in Alam v QBE Insurance(Australia) Ltd [2018] FCA 1560 (Alam) delivered on 11 September 2018, when his Honour in turn relied on the decision of Sackville J in New South Wales Insurance Ministerial Corporation v Abualfoul (1999) 94 FCR 247. In these two cases Lee J and Sackville J did not have any hesitation or reluctance in examining the anterior reasons of the judge whose discretionary order for costs had led to the judgment debt, in both cases arising out of a process of assessment of costs, and in each case actually found that the anterior reasons did not properly justify the costs order which had been made.
Lee J at [60] of Alam stated as follows:
[60] At the very least, the matters referred to by the appellants raised the real issue as to whether or not the costs order relied upon by QBE should have been made. Given the remarkable circumstances revealed by even a cursory examination of the District Court judgment, some consideration should have been given to the possibility of examining the circumstances more closely to ascertain whether the suggestion that there was a miscarriage of justice in making the costs order survived closer examination. As can be seen from the transcript (see [36] above) it was expressly submitted to the primary judge that a sequestration order should not be made “without looking all (sic) the matters”, that is, the circumstances in which the costs order was made. The primary judge rejected this by noting (see [37] above), that “(n)othing said by the third respondent identified any proper basis upon which this Court could go behind the judgment obtained”. With respect, the judgment was not conclusive and the circumstances as revealed in the evidence required that some effort be made to understand whether a bankruptcy court ought to “go behind” the judgment debt, given the suggestion of a miscarriage of justice. In short, the primary judge erred in failing to consider the point properly, although it is unnecessary to conclude whether a miscarriage would have been established in the circumstances.
A similar approach was taken by the Full Court of the Federal Court of Australia comprised of Reeves, Farrell and Colvin JJ in Lowbeer v De Varda [2018] FCAFC 115.
The circumstances in which a bankruptcy court exercising jurisdiction under s.52 of the Act may go behind a judgment in order to satisfy itself that the debt is truly owing are not limited to cases in which the judgment was obtained by fraud, collusion or miscarriage of justice. The judgment is never conclusive in bankruptcy, but the bankruptcy court may accept the judgment as satisfactory proof of the petitioning creditor’s debt, unless reason is shown for questioning whether behind the judgment there is in truth and reality a debt due to the petitioning creditor. The bankruptcy court will not enquire as a matter of course into the validity of a judgment debt and bankruptcy courts are reluctant to go behind judgment debts when the judgment was entered after a contested hearing where both parties appeared. This area of law has recently been canvassed by the High Court of Australia in Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132.
In this case, any process of going behind the Judgment would not of course entail any extensive consideration of facts or law, because the anterior reasons of McCallum J comprise only one and a half pages, which I have obviously read and considered.
I reject the submission of Mr Rose that in exercising my discretion as to whether or not to go behind the Judgment I am precluded from considering or having regard to the anterior reasons, but consider rather that I should follow the approach of Lee J in Alam, as submitted by Ms Nolan.
Nevertheless, to cover the full area of debate I find as follows:
a)there has been no sufficient reason shown to go behind the Judgment on its own;
b)there is no sufficient reason shown to go behind the Judgment as seen and viewed through the prism of the anterior reasons; and
c)there is no sufficient reason shown to consider that the anterior reasons occasioned any miscarriage of justice, or evidence a wrongful exercise of discretion.
ULC commenced the Supreme Court proceeding against the Creditor, but ultimately did not pursue the case and it was dismissed and ULC was thus prima facie liable for the costs of the proceeding. However, as recognised by McCallum J at [3] of her anterior reasons she could not make an order for costs against ULC, which had become a non-existent corporate Plaintiff. The Debtor on the other hand was the controlling mind and will of ULC at all material times and had personally sought to be joined to the proceeding by the notice of motion filed on 5 July 2016.
McCallum J in these circumstances arguably took a generous view towards the Debtor in confining the liability for the costs which she was ordering him to pay only to the period between the date he sought to be joined to the proceeding, 5 July 2016, and the date the proceeding was dismissed, 12 August 2016. Under the anterior reasons the Creditor recovered no costs in the Supreme Court proceeding from its commencement on 13 May 2016 until 5 July 2016. A corollary of the Debtor’s criticism of the anterior reasons is that McCallum J should have in substance ordered that the Creditor receive no costs of the Supreme Court proceeding. In my view, even if I was minded to go behind the Judgment and anterior reasons, no error of any kind is established and there is no reason for questioning whether in truth and reality a debt is due to the Creditor. McCallum J had regard to the relevant principles considered by Campbell J in JJES Pty Limited v Sayan (No 2) [2014] NSWSC 975, which case included a reference to the care to be exercised before piercing the corporate veil in making personal costs orders against shareholders and directors. The discretion exercised by McCallum J to order costs against the Debtor in the Supreme Court proceeding from 5 July 2016 constituted a completely conventional and unexceptionable exercise of her discretion.
In my view, Ground 2 of the Notice of Opposition also fails.
Conclusion
As I have said, Ground 3 of the Notice of Opposition is not pressed. The Creditor has established its entitlement to a sequestration order and for the purposes of s.52(2)(b) of the Act there is no other sufficient cause against the making of a sequestration order and accordingly such an order will now be made.
Application for Stay of Proceedings
I made the sequestration order against the Estate of the Debtor and the usual conventional orders associated with such an order. Thereupon Ms Nolan asked for a stay which I took to be an application for a stay under s.52(3) of the Act, which permits the Court, if it thinks fit and upon such terms and conditions as it thinks proper, not to stay the sequestration order itself but to stay all proceedings under the sequestration order for a period not exceeding 21 days.
Upon such an application for a stay the authorities establish that, in particular, two matters are to be considered. The first matter is that there be articulated and identified some arguable point or points for the foreshadowed appeal from the making of the sequestration order and the identification of some reasonable doubts about the decision which is to be appealed. In that connection, with respect to Ground 2 of the Notice of Opposition, Ms Nolan identifies what she says are three possible sub-grounds of appeal relating to Ground 2 and my views in relation to the anterior reasons ordering the Debtor to pay the costs from the date he sought to be joined as a Second Plaintiff to the Supreme Court proceeding.
Ms Nolan says that these points are arguable or are sufficiently real and meaningful such as to justify a stay. She also says in relation to the second area which has to be considered, namely the balance of convenience, that the Debtor has for some time now been trying to settle the dispute between the Creditor and himself in relation to the Judgment debt and she points to, and I have admitted into evidence, an email dated 8 November 2018 from a solicitor for the Debtor, in which a proposal is put in relation to the full payment of the Judgment debt and how that could be achieved efficiently. Ms Nolan says that in the circumstances her identified arguable sub-grounds of appeal and the balance of convenience favour the making of a stay order.
Mr Rose, on the other hand, opposes the granting of any stay and points out that the Debtor can still appeal and that any such appeal is not rendered nugatory, and that I ought to refuse the stay. In my view, I ought to refuse the stay. It is always invidious for a judge who has just given reasons and pronounced orders to come to a view, even on a preliminary basis, about whether he or she might be wrong and whether or not there are good arguable grounds for appeal, but that is what I have to do and part of the exercise which I am undertaking. In my view, there are no real grounds or arguable grounds which could be put forward on an appeal to the Federal Court of Australia in relation to how I have dealt with the anterior reasons of McCallum J and the Judgment debt.
In other words, I do not think that on appeal the arguments which have been articulated by Ms Nolan are likely to succeed in showing or establishing that McCallum J erred in the exercise of her discretion.
Further, I am not satisfied that it has been shown that the balance of convenience favours the making of a stay order. It is to be remembered that this is not simply private litigation, but that other third parties, namely creditors of the Debtor, have an interest in the proper administration of his Estate. There is no evidence as to whether they exist or not, but the simple fact of the matter is that I have to consider whether prejudice to the Debtor would outweigh prejudice to any potential creditors, and there is simply no evidence about that. I have no evidence about the financial position of the Debtor. In my view, it has not been shown that the balance of convenience favours the granting of any stay.
Accordingly, the oral application made a short time ago by Ms Nolan for a stay of all proceedings under the sequestration order pursuant to s.52(3) of the Act is refused.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 30 July 2019
0
13
5