Official Trustee in Bankruptcy (as trustee of the bankrupt estate of Vera Mary Kavich) v Antlers P/L & Ors Antlers P/L v Deputy Commissioner of Taxation

[1993] FCA 484

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY	)
1
GENERAL DIVISION	) NG 3118 of 1993

BETWEEN:	OFFICIAL TRUSTEE IN BANKRUPTCY (AS TRUSTEE OF THE BANKRUPT ESTATE OF
WRA MARY KAVICH

Applicant

AND:  ANTLERS PTY LIMITED

First Respondent

AND :  GEORGE KAVICH

Second Respondent

AND:  VERA KAVICH

Third Respondent

NG 117 of 1993

BETWEEN:  ANTLERS PTY LIMITED

Applicant

AND:  DEPUTY COMMISSIONER OF TAXATION

First Respondent

AND :  THE OFFICIAL TRUSTEE IN BANKRUPTCY

The view I take is that there should be leave, if it is required, and no-one has troubled to argue whether it is in	fact required. On the assumption that it is required, leave
should be granted to appeal from the decision of Whitlam J. given 29 June 1993.
I have also been asked to make an order having the effect of rescinding a further order that his Honour made appointing a receiver to the company. The basis of that application is that there has been a significant change of circumstances, because the appointment was made on the footing that the company was without directors, and was a totally rudderless ship. Mr Porter has convinced me that that is not quite correct; although his Honour may have been considerably influenced by such a view, he also did contemplate the possibility, if not exactly of the steps that were in fact taken, at least of steps to the same effect.
Consequently, it seems to me that the application for rescission amounts to an appeal against what his Honour did. It directly raises in issue the correctness of the view of the matter which he took in appointing a receiver, insofar as he
prepared to make an order rescinding the receivership. I acted on the basis Mr Porter put. Accordingly, I am not
think the appropriate way in which that should be challenged is, in the circumstances, by an appeal against that also, and if Mr Bainton requires it, having heard full argument on it, I would be prepared to grant leave to file such an appeal.
I grant leave to appeal both against the interlocutory order appointing a receiver, and my own refusal to rescind that order. Subject to a special arrangement being able to be made, the only order that I will make at the present about expedition is that these matters, which I have been given to understand could be dealt with in one day, should be given as great priority as, subject to the exigencies of any other urgent matters, they can be given at the next sitting.
As to costs, I think the proper order is that the applicant should pay the costs of the application for rescission of the appointment of a receiver. The costs of the other motions involved I will reserve.

Second Respondent

C O W : Burchett J.
PLACE: Sydney

DATE : 12 July 1993

EX TEMPORE REASONS FOR JUDGMENT rEGEit2~ C0IJi.I I .I

AUSTRALIA

PfilNClPAL

REGIFTAY

BURCHETT J.:

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Burchett.

Associate: %M-

Date: 22 July 1993

Counsel and solicitor for the	Mr C.A. Porter Q.C.
Applicant in matter no. NG 3118	with Mr M.R. Aldridge

of 1993 and Respondents in matter instructed by the

no. NG 117 of 1993:	Australian Government Solicitor
Counsel and solicitor for the	Mr R.J. Bainton Q.C.

First Respondent in matter no.	with Mr C.J. Bevan
NG 3118 of 1993 and the	instructed by Messrs
Applicant in matter no.	McAuslands
NG 117 of 1993:
Solicitor for the Second	Mr V. Krikunov
Respondent in matter no. NG 3118 of 1993:
Counsel and solicitor for the	MS R.J. Bainton Q.C.
Third Respondent in matter no.	with Mr C.J. Bevan
NG 3118 of 1993:	instructed by Messrs Walsh James
Counsel and solicitor for the	Mr J.T. Johnson
receiver and manager of the	instructed by Messrs
first respondent in matter no.	Sally Nash & Co.
NG 3118 of 1993:
Date of hearing:	12 July 1993