Olivieri, I. v Stafford, D.H.

[1989] FCA 177

JUDGMENT No. ........ .... . 89

IN TBE FEDER At COURT OF AUSTRA	LLIA
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GENERAL DIVISION	No. B82 of 1988
BANKRUPTCY DISTRICT IN TEE STATE OF NEW SOUTE WAtES AND TEE AUSTRALIAN CAPITAL TERRITORY

Re :	I T a I A N O	OLIVIERI
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Debtor (Applicant)

_. And :

Creditors

CORAM: Einfeld J.

-	DATE: 11 March 1989
PLACE: Sydney
Following upon the judgment which I handed down yesterday, 16 March, there has been a predictable indication on the part of the creditors that an appeal is in contemplation. I note it in those terms because counsel very fairly says this morning that he has not himself had an opportunity of considering the matter in depth and of tendering any advice but he has indicated that, subject to such matters, and no doubt other considerations, instructions have been given by the debtor for an
appeal.

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The question now arises as to what should follow from that consequence. The first matter about which I should make an observation relates to that part of my Judgment which appears at pages l and 8 of the reasons -

I there commented on the fact that there were wlth the court papers

applications, which in form appeared to be on behalf of both partles, for the payment out of the moneys that have been paid into court. After overnight consideration by the pa'rties, It now seems that, desplte the form and content of these documents, that was an error. I am informed now that, In fact, these two documents were lodged, or left in the court office, by or on behalf of the credltors and nothing was left

by the debtor, or by the debtor's solicitors.

I have therefore permitted to be filed in court thls morning a

handwritten amended appllcation on behalf of the applicant creditors for

the payment out of the moneys that have been paid into court and have heard very brief argument this morning on this application. It should still be noted in relation to this application, that the creditors purport to rely upon affldavlts whlch are not yet clearly Identified and

I do not know to which affidavits the application refers. The creditors

apply for an order that the moneys pald into court be paid out to them.

They say that, quite rightly, that the litigation has a very long

history and that they have been deprived of moneys which have in successive courts and throughout the long litigation referred to in my

reasons for Judgment, been continually	held in their favour and	against
the debtor.
On the other hand,	counsel for the debtor points	out, as I think is

clearly inferential from the history of the matter, that failure to pay

thls debt has nothing to do wlth any insolvency on the part of the

debtor but rat	:her on some other considerations. In that sense, the
creditors have had the option since the original judgment was	obtained
in the District Court on 14 November 1985, to seek execution	in another
court or by procedures other than those conducted	in or under the aegis
of this Court.
The creditors say	that they would be pkepared to abide by a requirement
of something like a bank guarantee or other form of security	to ensure
that if, at some stage in this litigation, they are ordered	to repay the
money or in	some way the money is held not to be owing, the debtor would

be well protected.

The debtor resists this application saylng inter alia that it goes against the spirit if not the letter of the decision of a Full Court of this Court in Sarina v Council of the Shire of Wollondilly 119801 48 FLR

312. I have had the opportunity only of briefly looking at	this
decision so far as	it affects the matters in this case, and it 1s
pointed out that this case may be distinguishable on the ground	that the
matter involved	was a creditor's petltion rather than a bankruptcy
notice.
I think that I should follow the reasoning	which lay behind that

decision in relation to the moneys paid into court here and not order that the moneys now be paid out. There is another reason, apart from the decision in Sarina, which I discussed with counsel yesterday and today, and that is that the Court should not be, and has always been held not to be, involved in debt collection. The effect of an order

today that the moneys	paid out vould constitute this Court	as some form
of execution mechanism on	judgments obtained in another	court. This

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seems to me to be quite undeslrable. I therefore decline the credltors'

application for the	payment out of the moneys that are in court.
The second question	that arises then is an application by the debtor for

a stay for 21 days of the orders which I made yesterday. Alternatively, the debtor seeks a further extension of the time for compliance with the

bankruptcy notice. Except as to costs, I cannot quite see what the

advantage or need for a stay is.	Provided that the time for compliance
with the bankruptcy notice IS extended, the debtor is protected,	so far
as he is already protected, from committing an act	of bankruptcy which
might found a	creditor's petition.
Bowever, costs do appear to be a matter of	some significance in this
case, having in mind the history	of the matter, and there may be other
consequences of my judgment yesterday which are not	immediately obvious

but which might flow from some of the technical requirements of the

Bankruptcy Act.	In those circumstances, I am inclined to grant the stay
conditioned upon two	matters:

(1) that the moneys paid into court remain in court and not be

subject to an appllcation by the debtor for payment out;

(2)	that the stay be limited to 14 days rather than 21 days to reflect the Court's serious concern about the history and
content of this litigation dating right back to 1982.

There is one other matter that occurs to me. If I do not grant a stay,

the debtor will most likely, having regard to the previous	history of
this litigation, make an application either to another Judge or	to a

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pull Court for a stay and that will merely provide another piece of lltigatlon in this long saga. It seems to me that the public interest and the interests of the creditors would best be served by expediting

the conslderation	of the appeal rather than to give birth to yet a
further hearing about a peripheral matter rather than getting on	with
the substantive matter.

For those reasons, I grant a stay of the orders made on 16 March. The

stay is condltloned as I have previously outlined. I refuse the application for the payment out to the creditors of the moneys that have been pald into court. There shall be no order as to the costs of that application.

I certlfy that

hls and the

f t)UfZ

precedmg pages are

a true COPY of the

Reasons for Judgment hereln

of hls Honour I

I

Einfeld I Justice I