Pearson, Glenn Stewart v Jamieson, William John

[1998] FCA 777

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG7527  of  1998

BETWEEN:	GLENN STEWART PEARSON Applicant
AND:	WILLIAM JOHN JAMIESON Respondent

JUDGE:	EMMETT J
DATE:	19 JUNE 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR: I have before me an application to review a decision of the Registrar refusing an adjournment of the hearing of a bankruptcy petition. The ground advanced for the adjournment was that on 27 May 1998, three days before the petition was served on the debtor, the debtor signed an authority under section 118 of the Bankruptcy Act 1966 (Cth). A report by the controlling trustee was circulated to the creditors on 17 June 1998. The report indicates that the divisible assets of the debtor are nil and that there are unsecured creditors of $1,309,706.

The debt of the petitioning creditor represents something in excess of 40 per cent of the total debts.  The solicitor for the petitioning creditor has also indicated that he has instructions for a supporting creditor representing an additional $50,000.  The petitioner has indicated that proposals which have been put forward on behalf of the debtor to date are not acceptable to him.  The proposal contemplated by the report circulated on 17 June involves a contribution of $100,000 although it has been suggested that further offers have been made and rejected by the petitioner.

It is apparent that, if the report is correct, the funds which will be contributed to the composition come from somewhere other than the assets of the debtor.  There is a suggestion that the contribution would come from a relative of the debtor.  There is evidence before me of various property dealings in which the debtor has been engaged in recent times.  That evidence indicates that, prior to the judgment which is the subject of the bankruptcy notice, the debtor had owned properties in his own name in Bellevue Hill.

Those considerations indicate that there may well be good reason for the petitioner to require the appointment of the Official Trustee pursuant to a sequestration order rather than an administration under Part X. 

In the circumstances, having regard to the clear attitude evinced by the petitioner in the light of successive proposals which have been considered by him and rejected, there appears to me to be no utility in adjourning the hearing of the petition until after a meeting of creditors.  If the petitioner votes against any proposal, as he has indicated he will, then the proposal must of necessity fail.  I consider that it is appropriate to refuse the application for adjournment in so far as the application is based on the fact that a meeting of creditors is to be convened. 

It has also been suggested that the judgment debt, which is the subject of the bankruptcy notice, is the subject of an appeal.  Even at this late stage, no submissions have been made concerning the merits of that appeal.  While ordinarily a Bankruptcy Court would not grant a sequestration order based on a debt which is the subject of appeal, it would only decline to do so if the appeal is based on reasonable and arguable grounds.  At present, there is nothing before me to indicate that that is the case. 

Accordingly, I refuse the application for an adjournment.

I certify that this and the preceding one (1) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             19 June 1998

Solicitor for the Applicant:	Neil Lawson & Co.
Solicitor for the Respondent:	Proctor Phair & Associates
Date of Hearing:	19 June 1998
Date of Judgment:	19 June 1998