Olivieri v Stafford

[1990] HCATrans 68

i~

~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl38 of 1989

'Between -

ITALIANO OLIVIERI

Applicant

and

DONALD HARRY STAFFORD
MARTHA ANNE STAFFORD
RONALD JOHN STAFFORD

ALAN JAMES STAFFORD

Respondents

Application for special

leave to appeal

BRENNAN J
DEANE J

Olivieri

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 APRIL 1990, AT 12.05 PM

Copyright in the High Court of Australia

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MR D.B. McGOVERN:  If Your Honours please, I appear with my

learned friend, MR J. HATZISTERGAS, for the

applicant. (instructed by Galluzzo & Golatta)

MR D.P.F. OFFICER, QC:  May it please the Court, in this matter

I appear with my	learned friend, MR G. TUMER, for
the respondent.	(instructed by Fitzgerald White
Talbot & Co)

BRENNAN J:  Mr McGovern.

MR McGOVERN: This is a case that concerns the circumstances

in which a bankruptcy notice can be set aside where

the bankruptcy notice in its term is based upon a

judgment where the amount of the judgment was entered

in error for a larger amount than was due in fact.

It is common ground, and it is a finding of fact made

by the trial judge,His Honour Mr Justice Einfeld,
that there was an overstatement of the amount which
was sought upon the debtor, the present applicant, in

the bankruptcy notice.

DEANE J:  I understood that there was an assertion that there

was an understatement in other amounts.

MR McGOVERN:  Your Honour, at page 56 of the application book

in the judgment of Mr Justice Beaumont, right at

the end of the judgment, just under line 20,

His Honour says:

As has been said, the primary judge found
that there was an overstatement in the
notice but that, for other reasons, the

challenge to the validity of the notice

should be rejected.

Your Honours, the amount of- - -

DEANE J: That is not - what I said to you was I understood that

your opponents said if the matter of the judgment debt

were to be reopened, they would claim that there were understatements in other amounts which would, in effect, increase the amount of the judgment debt.

MR McGOVERN:  Your Honour, that was an assertion that was put

forward but in the evidence in the case, as a matter

of fact, what was demonstrated was that the judgment
was entered for an erroneously high amount because

the judgment itself was based upon a notice to admit

facts where the calculations were incorrect and it

was demonstrable on the face of the calculations

that the amount claimed was greater than the amount

for which judgment was entered.

DEANE J:  The amount claimed in respect of one item.

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MR McGOVERN: In respect of two items, Your Honour. Certainly

one feels a certain level of trepidation to be

relying upon a very small amount as being in excess

of the amount for which judgment was entered, but
none the less, in our respectful submission, the
point of principle is an important one, namely what
are the circumstances and what are the parameters
and the avenues available to a debtor to challenge

a bankruptcy notice when the amount claimed in the

notice is an overclaim and where the judgment upon

which the notice is based is entered for an excessive

amount.

In our respectful submission, there are findings in what the trial judge said - - -

DEANE J:	How much is involved in the amount?
MR McGOVERN:	Your Honours, the amount is, I think, $389.

DEANE J: Out of?

MR McGOVERN:  Out of, I think, a total which appears at - - -

McHUGH J: $19,318.

MR McGOVERN:  Yes. Page 95 of the application book, Your Honours,

the bankruptcy notice specified the amount of the

judgment as $19,318.93.

DEANE J:  And that is now the only challenge to the judgment,

is it?

MR McGOVERN:  Your Honour, in the bankruptcy jurisdiction the

only challenge to the bankruptcy notice is that the

bankruptcy notice claimed too much, namely $389-

DEANE J:  But that is the only challenge to the judgment

outstanding, is it not?

MR McGOVERN: Yes, I would have to concede that that is so.

DEANE J: Are your clients prepared to pay the rest forthwith

as a condition of leave? I mean, there had been

owing, all this money, for what, eight years now.

MR McGOVERN:  Yes, Your Honour, there is certainly a lengthy

history associated with the matter which ultimately

caused the trial judge to exercise a discretion in

relation to - - -

DEANE J: Well, what is the answer to my question? Are they

prepared to pay the amount they owe, putting aside

this $300, as a condition of granting leave?

MR McGOVERN:  Would Your Honour pardon me. I would need to

get some instructions.

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DEANE J:  And they would need to be able to do it today, I

would have thought.

MR McGOVERN:  Your Honours, I am reminded that there was an

amount of money paid into the Federal Court pursuant
to a direction of His Honour Mr Justice Einfeld,

being the full amount of the claim- - -

DEANE J: Less interest -

MR McGOVERN:  I think, yes, less interest, and I think also all

of the costs have been paid and those include the

costs of other proceedings in the Court of Appeal as

well as before the Full Court. So the only matter

outstanding or discrete, as it were, is the quantum

of this - - -

DEANE J:  $300 and interest.

MR McGOVERN: Well, the amount of-the principle, in our respectful

submission, that is whether a bankruptcy notice can

be challenged by the service of a notice under

section 41(5) of the BANKRUPTCY ACT as an additional

matter to the general principle upon which one can

look at a bankruptcy notice and ineffect look behind

a judgment in order to determine whether there is an

amount in fact due in accordance with the principles

in WREN V MAHONEY. If Your Honours please, the

issue in bankruptcy matters is always, in our

respectful submission, based upon the proposition that

the law of bankruptcy is not concerned with the

de minimis principle. As a matter of the ordinary

practice in bankruptcy courts, the court very

frequently is called upon to deal with matters where,

as a matter of considerable technicality, bankruptcy

notices and creditors petitions are dealt with to the

detriment of creditors who use those provisions and

those procedures in order to enforce or purport to

enforce judgments.

DEANE J: Yes, but Mr McGovern, when we are dealing with a leave

application, it is relevant that there does cone a

time when litigation should, as a matter of the

administration of justice and ordinary fairness, be

brought to an end. Now, when what is now sought to

be done, after applications to the district court

and everything else,years after to try and go behind

a district court judgment on the basis of $300, when
the other side says if the judgment is opened up we
claim that we are entitled to more than that $300,
it really puts you at a little bit of a disadvantage

in seeking the exercise of the discretion in your

favour.

MR McGOVERN:  I appreciate that. But, Your Honours, in the

matter of the general application of principle in

bankruptcy law, what is significant about the present

case is that it does expose these issues, real

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issues of principle. For example, in the majority

decision in the Full Court, one of Their Honours,

in effect, implicitly chose to sway away from and

not to follow a decision of long standing in

bankruptcy law, namely a decision called RE PROSSIMO,

a decision of Justice Clyne delivered in 1952,

subsequently followed in numerous cases, and never

the subject of any serious doubt until in effect

His Honour Mr Justice Gummow passed observations

about it and the cases that have followed as a matter

of the construction both of section 41(5) and
section 41(6A) of the BANKRUPTCY ACT as a consequence
of the 1980 amendments.

In our ·respectful submission, it is possible

to go back to, firstly, the English Bankruptcy Act
of 1924 to trace that through the amendments - I

withdraw that - the incorporation into section 53(ii)

of the BANKRUPTCY ACT 1924 and then through to the

present section 41(5) to discren out of section 41(5)

a means by which a debtor can challenge the validity

of a bankruptcy notice, quite apart from matters of
ordinary discretion that may be involved in the
challenge of a notice either at the bankruptcy notice

stage or at the creditors petition stage, conformably

with cases such as WREN V MAHONEY and CORNEY V BRIEN.

In our respectful submission, the way in which the

dissenting judge, His Honour Mr Justice Sweeney,

approached this case in the appeal to the Full Court

is the approach which conforms with principle of

long standing and it is significant, in our
respectful submission, that this is a case where four
judges have considered the point at issue and each

judge has arrived at a conclusion based upon different

reasoning. The end, or sum total, in our respectful

submission, of that reasoning is that what was

considered since 1952 in the judgment in RE PROSSIMO

as a matter of certainty as to a way in which a

bankruptcy notice could be challenged by the gateway

of section 53(ii) of the 1924 Act, now section 41(5)

of the present Act, has been thrown for the first
time into serious doubt.	Or alternatively, in the

way in which Mr Justice Beaumont approached the

matter in the Full Court, has imposed restrictions

upon the circumstances in which section 41(5) would

be considered and applied, depending upon discretionary

matters.

Those questions of discretion have never been

at the forefront of any interpretation of section 41(5)

in the judgments which have followed RE PROSSIMO, nor has it been a feature of any of the judgments, and in

particular the judgments of Mr Justice Clyne, of long standing which interpreted section 51(ii) of the 1924

Act. So quite apart from questions of discretion

which may be available to a person challenging a

notice conformably with the principles enunciated in

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WREN V MAHONEY and that line of country, we

respectfully submit that section 41(5), which has

never been the subject of direct consideration by

this Court -the closest, if I may parenthetically

observe that the matter came to consideration in

this Court was in the case of RE WALSH, which was

a claim concerning an overpayment but that case went

off on a different point, namely the fact that the

bankruptcy notice, a highly technical argument being

developed, but that the bankruptcy notice at the

point of its issue was or accurately described the

amount that was due in fact. This, in our respectful

submission, because of the presence of appropriate

findings, is a different case altogether. This is a

case which'is on all fours with the decision in

RE PROSSIMO and with the cases which have followed

that into the legislation, notwithstanding any

amendments to the 1980 Act.

Could I just develop that a little more fully,

Your Honours, by taking Your Honours to what

Mr Justice Sweeney said and to then hand up to

Your Honours a copy of the judgment of Mr Justice Clyne

in RE PROSSIMO. If I could take up the matter of

His Honour's judgment commencing at the bottom of page 33 of the application book. His Honour there

set out the terms of the 1924 to 1850 Act. At page 34

His Honour reproduces the passage from the judgment

of Justice Clyne in RE PROSSIMO which dealt with

section 53 of the 1924 Act and Your Honours will see

at page 34 that section 53 of the 1924 Act is

reproduced save for the words above (i).	The words
should read:

provided that a bankruptcy notice -

and then under that:

(ii) shall not be invalidated by reasons

only that the sum specified in the notice as

the amount due exceeds the amount actually

due -

Now, Your Honours, in the amendments to the Act which

occurred, as His Honour Mr Justice Sweeney observes

after the committee presided over by Mr Justice Clyne
considered the administration of the bankruptcy
legislation, the amendments to the Act are of
significance in the interpretation of the problem
that arises in the circumstances of the present
case and which has, we say, very much wider
significance in the general law of bankruptcy. Firstly,

that the language changes to refer to the fact that

the words "exceeds the amount actually due" are
changed to the words I think "in fact due". That

change is something that arises directly out of a

discussion of the words "actually due" in the case

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of RE PROSSIMO.	Can I hand up to Your Honours
four copies of the decision in RE PROSSIMO.	At

page 89 of the judgment in RE PROSSIMO, the judgment

of Mr Justice Clyne, at about the middle of the page

His Honour - perhaps if I can just take Your Honours

very briefly to page 88 at the top of the page, the

highlight there is that there was a finding:

that the amount of the judgment recovered

..... by the petitioning creditor was 60 pounds

in excess of the amount actually due by the
debtor.

And even taking into account that 60 pounds there was still a sufficient amount of money which could

found a creditors petition. But at page 89, in the

middle of the page, His Honour said:

To determine the question in issue regard

must be had to the proper construction of

s.53 and this in turn involves two subsidiary

questions. The first is as to the meaning

in the second proviso to the section of the

words "the amount actually due.It "The words

'provided that' are ordinarily used to

introduce an exception -

et cetera. Then in the next paragraph His Honour says,

about the fourth sentence:

It would be, I think, a forced construction

of the words "the amount actually due" if they
were construed as meaning the amount actually

due under the judgment, and not the amount due

in fact.

Now, if I could just pause to highlight those words

by reference to what Mr Justice Sweeney said at

page 39 of the application book and page 38 of the

application book. His Honour having concluded at

page 38 that:

the language of sub-sec.41(5) is wide enough

to cover the present case -

at the bottom of page 38 His Honour says:

If this opinion were attended with doubt,

it would be helpful in resolving it to

refer to the Report of the Cormnittee

appointed by the Attorney-General of the

Cormnonwealth to review the Bankruptcy Law

of the Cormnonwealth, which was presided over

by Clyne J. There was attached to its

report the draft of a Bill for an Act

relating to Bankruptcy, which included as

sub-clause 41(5) -

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Now, if Your Honours just read the indented

paragraph in the reference to 69, the reference to

section 53 was in these instructive terms, in our

respectful submission:

The provisions contained in section 53

dealing with the form, contents and
service of a bankruptcy notice are
considered by the Committee to be generally

satisfactory, although the Committee believes

that the precise requirements as to such a
notice will appear more clearly from the

redraft of that section -

Now, the redraft of the section was to drop out
the word "actually" due which had troubled

His Honour in the construction of section 53 in

RE PROSSIMO, as appears from the reference to which

I have taken Your Honours at page 89 of that judgment:

the words "the amount actually due" if they
were construed as meaning the amount actually

due under the judgment, and not the amount

due in fact.

And then His Honour said:

The words "actually due" must, I think,

refer to what is due in reality.

So after the redraft of the section it was, in our

respectful submission, clear that the draftsmen had

endeavoured to put the legislation on all fours with

what Mr Justice Clyne had in mind in the RE PROSIMMO

decision and if one deals with the facts in that case

and applies the reasoning to the facts and

circumstances of the present case, accepting for the

moment that the question of over-claim in the

bankruptcy notice, which in turn is an over-claim as

a component of the judgment, is right as a matter

of fact, then there is a gateway for a debtor to

utilize section 41(5) to serve a notice disputing

the amount of the claim and then, in those

circumstances, presumably a creditor can, as it were,

put his house in order by correcting a judgment if it is erroneously obtained or taking such other steps as

may be necessary to reissue a bankruptcy notice in a

form which is able to overcome the complaint if it is

a valid complaint.

In our respectful submission, the work that

section 41(5) is in effect performing is enabling,
in a statutory sense, a debtor to look at a bankruptcy

notice and to sweep aside, if it be necessary, a

judgment which has been obtained upon which the

bankruptcy notice is reliant, in order to examine the

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actual factual matrix and if he is able to expose
the fact that there is in the actual facts, ignoring
or sweeping aside the question of any judgment, that

there is a claim which is an excessive claim, and he

has served the notice under section 41(5), then as

His Honour Mr Justice Sweeney observes, that task

having been undertaken, it is up to the court then to

examine the validity of the notice in accordance with

other provisions of the Act and, for example,

provisions such as section 306 relating to whether or

not, in a case of an over-claim, that type of

provision would be able to save the notice.	If not,
then the notice would be bad and the usual
consequences would presumably follow.

Now that reasoning which we say is contained within Mr Justice Sweeney's dissenting judgment, based

as it is upon RE PROSSIMO which has never been the

subject of any doubt other than a reference by

Mr Justice Lockhart in the RE WALSH case at first

instance where His Honour made some observations

about section 53(ii) being an ameliorating provision - or section 41(5) being an ameliorating provision - and

anticipating the prospect that in certain circumstances

the court may go further and examine the question

whether in the claim of an over-claim in a bankruptcy

notice, the court might take the same type of approach

that ultimately took the court's attention and

application in the case of KLEINWC'1 T BENSON V CROWL.

In our respectful submission, in the realm of

bankruptcy law and bankruptcy notices, the question

of a claim of an excessive amount has always been

regarded as being fatal to the bankruptcy notice.

It was for that very reason that the provision or the

proviso to section 53(ii) came into place, to save a
notice in circumstances where there was an over-claim
but to save it only to the extent that it obliged a
debtor to serve his notice upon the creditor and to
bring to the attention of the creditor the fact that

there was a contest about an over-claim. That

legislative regime has followed through into the

present section, in our respectful submission.

In the majority judgment in the Federal Court

in this case, in our respectful submission there are

two competing lines of reasoning which apply. In the

first instance, Mr Justice Gurmnow said, in effect,

that because of the fact that the Act in section 24

of the 1982 Act contained amendments, namely
subsection (6A) to section 41, that that amendment

stripped away or rendered inefficacious the

section 41(5). In our respectful submission, that

reasoning causes serious difficulties in the
administration of the bankruptcy law, having regard

to what was previously the settled law concerning

bankruptcy notices.

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Your Honours, if I could invite attention to

page 63 of the application book, the judgment of

Mr Justice Gurmnow, having at the bottom of page 62

considered the significant consequences that might

arise from the commission of an available act of

bankruptcy, in the middle of page 63 His Honour said:

I should add that sub-ss. 41(6A), (6B)

and (6C) were inserted into the legislation

by s.24 of the BANKRUPTCY AMENDMENT ACT 1980.

Earlier decisions dealing with the operation

of the federal bankruptcy legislation upon

situations such as that with which the Court

is concerned on this appeal (for example,

RE PROSSIMO; EX PARTE DE MARCO (1952) 16 ABC 86,

and RE .MURRAY (1959) 18 ABC 152) are to be

read with this in mind. The significance of the changes made in 1980 to the Act does not

appear to have been drawn to the attention

of the Court in RE WILLIAMS; EX PARTE ALBERTON

ELECTRICAL SERVICE PTY. LTD. (1981) 43 ALR 552

and RE GREENHILL; EX PARTE MYER (N.S.W.) LTD.
(1984) 5 FLC 84.

Both of those cases were single instance decisions of the Federal Court following the observations

in RE PROSSIMO. What we respectfully submit is this,

that in the reasoning of Mr Justice Sweeney, the

reasoning process is correct and ought to be followed,

namely that by an analysis of legislative history it

can be demonstrated that the challenge to a bankruptcy

notice first exposed by the RE PROSSIMO decision, and

then subsequently followed, is still available and it

is not affected, and there is no impact upon it, by

any amendments such as (6A), (6B) and (6C) of section 41.

Now, His Honour Mr Justice Beaumont took a

quite different approach to the cases which were

heavily relied upon in the Full Court of the Federal

Court. What His Honour said, in our respectful submission, is not warranted by the language of

respectfully so submit, the general propositions	section 41(5) at all and it confuses, if we may
about interfering and looking behind or sweeping
aside judgments as a matter of pure discretion with the statutory permission that is given by section 41(5) to do that, quite apart from any question of discretion
at all. Because what His Honour said was that it was
only in circumstances where one was dealing with a
particular type of judgment, n·amely a default
judgment or a judgment which was other than a judgment
contested on the merits, and may I parenthetically say that the judgment in the circumstances of the present
case was an ex parte judgment, but be that as it may, ,
His Honour was confining the application of section 41(5)
implicit in his reasoning to circumstances where it was
necessary to focus upon the nature or the quality of
the particular judgment that had been obtained.

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In our respectful submission, that is not

warranted by the language of the section and it lacks, in our respectful submission, the endorsement of these

time honoured authorities. As to the trial judge he,

if we may respectfully observe, took a quite different

approach to the matter altogether. What His Honour

the trial judge said was that because of the decision
of this Court in KLEINWORT BENSON, which deals with

the reverse situation, namely the under-claim of an

amount, because of the observations of the Court in

that case that the situation had moved forward such

that there was no difference between an over-claim
and an over-claim, the two were to be equated, and in

those circumstances even if there was an over-claim,

which he found as a matter of fact to exist in the

bankruptcy notice, none the less the notice was saved
because of its - and it has to be frankly conceded -

its lack of capacity to mislead the debtor. But we

respectfully submit that that is itself a radical

departure from the law which was enunciated as long

ago now as 1908 in the case of RE A DEBTOR in

England which is said to be the precursor and the

reason for the proviso in the English Act, section 2,

and ultimately the proviso in section 53 to the

1924 Act here.

So that is itself a radical approach matching,

in our respectful submission, the equally radical

approach, having regard to authority of

Mr Justice Gummow in the majority, and is at variance

with Mr Justice Sweeney, the minority, who in effect

upheld the arguments that we advanced in relation to

the proper construction of section 41(5) of the

BANKRUPTCY ACT, but quite apart from questions of

discretion, if a notice is served, it falls for

determination by the court to consider whether the

amount in fact due is in fact due - I am sorry, I

put that badly - whether the amount which is claimed

in the bankruptcy notice is in fact due.

Now, in our respectful submission - and I have

said it a number of times and I will not weary the

Court by unnecessary reiteration - that is the

correct approach on an historical analysis and

conforms with all previous authorities. The judgment

of the majority adding an endorsement to His Honour

the trial judge has now created uncertainty in a
field which was previously certain having regard to

the cases that have followed RE PROSSIMO.

BRENNAN J:  Mr McGovern, what is the financial implications

of the present argument?	How much is in dispute as
turning upon this point?

MR McGOVERN:  Your Honour, I have already said that the de minimis

rule - - -

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BRENNAN J: Yes, I appreciate that.

MR McGOVERN:  I think the figure, Your Honour, is - I say with

some trepidation - as I indicated, $389 is the

identifiable over-claim in the bankruptcy notice

and of course there are other -

BRENNAN J: What has happened to the money in court? Has it

been paid out?

MR McGOVERN:  The direction was that the money remain in

court, and I think it has been put on statutory

interest earning deposit. That was a payment that

was made into court as a condition to the granting

of an adjournment at a much earlier stage of the

proceedings before His Honour Mr Justice Einfeld.

BRENNAN J: If that was paid out now, that would leave $389

in dispute or more?

MR McGOVERN:	I am reminded by my learned friend, Mr Officer, that there are questions of interest involved and
of course there are now questions of costs involved
because this case, we respectfully submit, identifies
an important principle and that is if there is a judgment which is entered for an excessively large
amount, is it the duty of the debtor to go back to the court to get it corrected or, in our respectful
submission, the whole history of bankruptcy law
strongly supports the view, irrespective of what one may lean against in relation to the activities of a debtor, the whole of the law focuses upon the
obligation of a creditor to ensure that if he utilizes
the provisions of what is a highly technical
jurisdiction, that he ought to conform to those
technicalities. So- - -
DEANE J:	Is what is said at page 44 of the application book

right, that is:

However, the respondents also claimed -

that is before the judge at first instance -

tha4 if contrary to their contention,

it were appropriate to "go behind" the

judgment and re-exmaime the merits of

their claim, it would be found that, in

fact, other items had been understated

in favour of the appellant, and that

the amount of this understatement would

exceed the sum of $389.00.

MR McGOVERN:  Your Honour, as a matter of evidence and fact,

there is no support for that contention. That was

an argument. If Your Honour looked at page 16 of

the application book -

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DEANE J: But it was an argument put to the trial judge, was it?

MR McGOVERN:  No, Your Honour, put in the Full Court, because

the finding of the trial judge - and this is

recognized by Mr Justice Beaumont at page 56 in his

judgment - and I have already taken Your Honours to

it - at page 16 and page 17, lines 4 and 5, in the

application book, it is clear that the errors were

included in a schedule of invoices forming part of

a notice to admit facts and that those invoices were

used to determine the quantum of the judgment. As

His Honour said at lines 4 and 5 those small amounts

became part of the judgment debt, but we have

respectfully put it a number of times that the

quantum is not to the point as to·the question of

principle.

DEANE J:	I follow that, but what you are saying really should
now be done is that the matter should go back to the judge at first instance in the Federal Court.

T7 MR McGOVERN: Yes, Your Honour.

DEANE J:  So he can now determine how much is in fact owing,

whether it is less the $389 that your client says

or whether, in fact, more is owing.

MR McGOVERN:	Yes, or nothing.
DEANE J: Well, it could not be that nothing is owing.	I mean

your client owes everything but the $389. Would

you want to go back to square one on everything?

MR McGOVERN:  Your Honour, we respectfully submit that the

language of section 41(5) says that it is necessary

to look at what is the amount owing in fact.

DEANE J:  I follow the-force of that legal submission; I am

just trying to - - -

MR McGOVERN: If the amount owing - if that is a statutory

permission to reagitate all of -

DEANE J: That is what I am asking.

MR McGOVERN: Well, that is what we respectfully submit is

available.

DEANE J:  You want to go back before the judge at first instance

in the Federal Court and start all over again and

deny any indebtedness at all.

MR McGOVERN: Yes, Your Honour, because we say that section 41(5)

allows us to do that.

DEANE J:  And this is after you appealed against the judgment

and applied to get it set aside and failed everywhere?

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MR McGOVERN:  Your Honours, the closest case to this factually

in relation to the litany of its past history is a

case called RE FRASER and in RE FRASER the English

court there set aside the judgment, notwithstanding

the fact that the case had had a very lengthy history

of failure in other jurisdictions.

DEANE J: Did they have a discretion to refuse special leave?

MR McGOVERN:  Your Honour, we say that there are so many

ramifications of considerable importance in the
present case and the uncertainty that has been
created really amounts to a necessity for this Court
to consider a matter which is directly now raised
for consideration; has never been the subject of

direct consideration before and where four judgments

have each had independent reasoning processes to get

to different results.

Could I just say this, Your Honours, in relation

to the question of a condition attaching to any leave, were that to be a matter the Court wished to take into

account, we would respectfully submit that the money

has been paid into court, it is on interest bearing

deposit. If the construction that is available that

we urge for 41(5) is correct- - -

DEANE J:  But if you be right and were to reopen the whole matter

from the beginning, it would obviously be quite

inappropriate to impose any conditions. I had not

appreciated how far your argument went when I raised

that question with you.

MR McGOVERN:  I might just indicate, if Your Honours please, that

all of the costs have already been paid directly and

I think there are two other subsidiary matters of

practical application in bankruptcy law which are
incidentally raised in the circumstances of the

present case: one is the point of time at which one

a construction of what Mr Justice Gummow says that can challenge a bankruptcy notice, because there is	suggests that the only appropriate point of time is
at the point of hearing the creditors petition, as
opposed to at the point of dealing with the
bankruptcy notice; and the other matter which we
merely invite attention to, rather than to urge in
the forefront of our submissions, is the observations
that His Honour makes about the extension of time for
compliance with a bankruptcy notice since, in the circumstances of the present case, the time for compliance with this bankruptcy notice continues to run.

They are my submissions, if Your Honours please.

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BRENNAN J:  We need not trouble you, Mr Officer.

The argument which has been advanced by

Mr McGovern has been advanced with much clarity

and demonstrates the difficulty of the problem

which he seeks to agitate. However, the history

of this matter, the size of the items that were said to be incorrectly included in the judgment

debt and the litigation which has since followed

show that it would not be in the interests of the
administration of justice at this stage to grant

special leave to appeal.

For that reason, special leave to appeal

will be refused.

MR OFFICER:  I seek an order for costs, if the Court pleases.

BRENNAN J: With costs.

AT 12.46 PM THE MATTER WAS ADJOURNED SINE DIE

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