Ng, Roger Ch Re Deputy Commissioner of Taxation, Ex parte

[1988] FCA 186

. ... .

RE: ROGER CH NG

M PARTE:  DEPUTY COMMISSIONER OF TAXATION

MINUTES OF ORDER

JUDGE MAKING ORDER:

DATE OF ORDER:	22 MARCH 1988
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    The first respondent, Roger C h Ng forthwith deliver

to the Official Trustee in Bankruptcy at H.L.C.

Centre, 239 George Street, Brisbane:

(a) all books, documents, papers, and writings in

his custody relating to his trade dealings,

property or affairs;

and Patrlcia Poh Choo Ng, by themselves, their

servants or agents be restrained until 4.15 p.m. on

8 April 1988 or further order save with the written

consent of the Official Trustee in Bankruptcy first
had and obtained:

(b) all the books, documents, papers and writings

in his custody relating to the trade deallngs,

property or affairs of Patricia Poh Choo Ng, Leisa Pty Ltd, Huat Lee and Sons Holdings Pty Limited, Sentosa Holdings Pty Ltd and any other company of which the first respondent is a director, or in which he owns beneficially any share;

2. The first respondent be restrained without the

prior approval of the Court from releasing any

person or company from any indebtedness of that person or company to the first respondent until

4.15 p.m. on Friday, 8 April 1988 or further order;

3.    The said Roger Ch Ng, Lcisa Pty Ltd, Huat Lee and Sons Holdings Pty Limited, Sentosa Holdings Pty Ltd

from disposing of or dealing with (including

in this restraint mortgaging or creating any

manner of charge over), the property of Roger

Ch Ng wheresoever situate (including any interest held jointly or in common with other person) or from counselling or procuring or advising or encouraging any other person in the taking of any steps which could result in the disposing of or dealing with (including m

this restraint mortgaging or creating any

manner or charge over) such property;

from removing any of such property as is in the State of Queensland from the State of Queensland or from counselling or procuring or advising or encouraging any other person in the taking of any steps which would result in the removal of any of such property as is in the State of Queensland from the State of Queensland; and

from removing any of such property as is in

any other State or Territory of the Commonwealth of Australia from that State or Territory or from counselling or procuring or advising or encouraging any other person in the taking of any steps which would result in the removal of any of such property as is in that State or Territory from that State or Territory;

4. Leisa Pty Ltd, Huat Lee and Sons Holdings Pty

Limited, Sentosa Holdings Pty Ltd and Patrlcla Poh

Choo Ng by themselves, thelr servants or agents be

further order from transferrlng, or further	restrained until 4.15 p.m. on 8 April 1988 or
encumbering or otherwise dealing with their
property wheresoever situate without the written consent of the Official Trustee of Bankruptcy flrst had and obtained which consent shall not be unreasonably withheld;

5.    Paragraph 14 of the order of the Honourable Mr

Justice Ryan dated 14 March 1988, as to the
abridgement of time for hearing of a creditor's petition, be set aside;
6 .	The application made on behalf of Leisa Pty Ltd,

Huat Lee and Sons Holdings Pty Ltd, Sentosa Holdings Pty Ltd, Tristar Management Pty Ltd and Patricia Poh Choo Ng, filed on 22 March 1988, with respect to the Honourable Hr Justice Ryan's orders generally be adjourned.

7.    The Court directs that the obligation under par.13 of the order of the Honourable Mr Justice Rpan

dated 14 March 1988 be no longer operative as from
the coming into effect of this substituted order.
B.	As to the costs of the application made by Leisa
Pty Ltd, H u t Lee and Sons Holdings Pty Limited,
Sentosa Holdings Pty Ltd, and Patricia Poo Choo Ng,

the respondent creditor's costs be taxed and paid as to one-half by the applicants, Leisa Pty Ltd,

Huat Lee and Sons Holdings Pty Limited, Sentosa

Holdings Pty Ltd and Patricia Poh Choo Ng.

- NOTE : Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

LL COURT OF AUSTRALIA 1

QLD P339 of 1988

RE: ROGER CH NG

M PARTE:  DEPUTY COMMISSIONER OF TAXATION

PINCUS J. 22 MARCH 1988

M T M P O R E REASONS FOR JUDGMENT

On 14 March 1988 Ryan J. made an order in respect of the

affairs of Hr Roger C h Ng, then the judgment debtor, now a

bankrupt. The order which his Honour made is complained of by
persons affected by it - in particular, in that it is said,
accurately, that the order, if valid, restrains deallngs in

property by persons other than Hr Roger C h Ng.

Paragraph 12 of the order has the effect, among other

things, of restraining Leisa Pty Ltd and	other entities, save with
the written consent of the Official Trustee, from disposing	of

certain property. Paragraph 13 has a similar effect. "he

contention which was advanced by Hr Robb of counsel for the

applicants was that s.30(l)(b) does not empower the Court to make

orders of that sort. The full terms of s.30(1) are as follows:

"The Court -

(a) has full power to decide all questions,

whether of law or of fact, in any case of bankruptcy or any matter under Part X or Part XI coming within the cognizance of the Court; and

(b)	may make such orders (including declaratory
orders and orders granting injunctions or
other equitable r medies) as the Court
considers necessary for the purposes of
carrying out or giving effect to this Act in
any such case or matter."
Mr Robb's point was that	the expression, "case of

bankruptcy" in (a) is carried into (b) by the expression "any such case", and he urged upon me the view that none of s.30(1) has any

effect until bankruptcy occurs; Ng did not become bankrupt until

after Ryan J. made his order. It immediately strikes one that the conclusion is improbable, because it would produce the result that in Part X matters there is power to make what mlght be described as interlocutory orders but none in bankruptcy matters. A second answer, however, and a simpler one, is that proposed by Mr Fryberq P.C., senior counsel for the respondent. He points out that in

s . 5 ( 1) the word "bankruptcy" is defined, in relation to

jurisdiction or proceedings as meaning "any jurisdiction or

proceedings under or by virtue of this Act".

s.30(1) would tend to make one think the definition could not The context In

apply to Part X or Part XI matters because they are separately

mentioned. Leaving that aside, there does not seem to be any

reason not to apply the definition so as to achieve the result that a case of bankruptcy within the meaning of s.30(1) is a case in which any jurisdiction or proceedings under or by virtue of the

Act are involved and in that sense the matter was, when before

Ryan J., a case of bankruptcy.

A third answer to the contention which is made by Mr

Robb is that s.30(l)(b) has in the past been regarded as

permitting the making of orders prior to bankruptcy.	In a number
of cases, orders have before bankruptcy	been made, founded upon

3.30, dealing with questions such as whether there is a proper

judgment debt; see also Re Bavliss; Ex parte Official Trustee	in
Bankruptcv (1987) 73 A.L.R. 455.

I therefore hold that orders of this sort may be made under 3.30. The test which must be passed to justify an order under s.30(l)(b) in this sort of case is not that which would justify a Mareva injunction, but simply that prescribed by the Act, namely, that the order must be one that "the Court considers

necessary for the purposes of carrying out or giving effect to

this Act ..." Here, although as Mr Robb implies the facts are but scantily proved, there is ample reason to apprehend danger to the

assets, in the material to which Mr Fryberg has referred.

may It prove, on fuller examination of the

circumstances, that the assets are, in truth, in no danger or that

there is no possibility of having recourse to the assets in the

ownership of (for example) Leisa Pty Ltd	in this bankruptcy. But
following the suggestion	put forward in Bavliss' case (above,
pp.457, 4581, it	seems necessary to preserve the position until
there has been at	least a preliminary look at the affairs of these
entities associated with the bankrupt and	those of Patricia Poh
Choo Ng, the bankrupt's wife.

I therefore do not propose to set aside the order. It

may be that, on fuller material the	Court could be satisfied that
there is no basis for continuing the	injunctions, but at present
it seems to me	clear that they should be continued.

The second category of matters raised by Mr Robb with

respect to the order of Ryan J. is that of variations. The orders

made by Ryan J. contemplated service at some earlier time than, in fact, will be achieved. Rather than varying the orders, it seems to me that the proper course is formally to remake them so they

will become my orders, and they will be as	follows:
Firstly, it will be ordered that the first respondent, that is Roger Ch Ng, forthwith deliver to	the Official Trustee in
Bankruptcy at M.L.C.	Centre, 239 George Street, Brisbane, all the
books, documents, papers and writings in his custody relating	to
his trade dealings, property or affairs.

Secondly, all the books, documents, papers and writings

in his custody relating to the trade dealings, property or affalrs

of Patricia Poh Choo Ng, Leisa Pty Ltd, Huat Lee and Sons Holdings

Pty Limited, Sentosa Holdings Pty Ltd and any other company of which the first respondent is a director or in which he owns beneficially any share.

Thirdly, it will be ordered that the first respondent be
restrained, without he prior approval of the Court, from
releasing any person or company from any Indebtedness of that

.

. 5.

person or company to the first respondent until 4.15 p.m. on

Friday, 8 April 1988, or further order.

Fourthly, there will be an order in the same terms as

those at para.12 of	Mr Justice Ryan's order with the exception
that the date 8 April 1988 will be	substituted for the date of his
Honour's order.

Fifthly, there will be an order in terms of para.13 of

Mr Jutice Ryan's order with the following amendments:

1.	that the date 28 March 1988 will be	replaced by the date	8
April 1988;

2. that the order will have added to it the expression, "which

consent shall not be unreasonably withheld".

Sixthly, the order made by his Honour and numbered 14 as
to abridgment of time for hearing of a creditor's petltion 1s set

aside. I propose to adjourn Mr Robb's application in respect of

Mr Justice Ryan's order generally, for two purposes:

1.	to enable him to bring it	on again on fuller material if	he
wishes;

2.    in pursuance of my Intimation that I expect the parties to agree upon periodical figures constituting sums necessary to be expended by H u t Lee and Sons Holdings Pty Ltd, Sentosa

Holdings Pty Ltd and Patricia Poh Choo Ng to meet regular

periodical expenses.

6 . _.

. If, in fact, the parties cannot agree on that, either

because it is suggested there are not any necessary expenses,	or
because there is a difference as to	amount, then I invite Mr

Robb's clients to bring the application on again to enable me to

deal with	that dispute.
I direct that the obligation under para.13 of the order
of Mr Justice R ~ M	be no longer operative as from the coming into

effect of my substituted order.

As to costs, the order will be that the respondent

creditor's costs of the application made by Leisa Pty Ltd, Huat Lee and Sons Holdings Pty' Ltd, Sentosa Holdings Pty Ltd. and PatCiCia PO0 Choo Ng, be taxed and paid, as to one-half, by the said applicants.