Perish, A.A. v Catenby Bros Pty Ltd

[1994] FCA 645

JUDGMENT No. .....,...,,, 69-S J , , . .

IN THE FEDERAL COURT OF AUSTRALIA	)
)
BANKKRUPTCY DISmICT	OF THE STATE ) No. NP930 of 1994

)

OF NEW SOUTH WALES )

RE :  ALBERT ANTHONY PERISH

Debtor

EX PARTE:  DTENBY BROS PTY LIMITED

Creditor

23 August, 1994

REASONS FOR JUDGMENT

LOCK-

This is

the hearing of a petition of sequestration of the estate of Albert Anthony Perish. Mr Perish appears for himself and seeks an adjournment of the petition so that he may obtain further evidence and put matters in place to enable a meeting of his creditors to be called so that they may consider either an informal arrangement of his affairs or a formal arrangement put in place pursuant to the provisions of Part 10 of the Bankruptcy Act 1966. The matter has been in the list before Registrars on more than one previous occasion and adjourned with directions given to Mr Perish to put on his evidence by appropriate form.

the evidence as follows; Mr Perish, is obvious insolvent. He	has assets. Certain assets have been sold by a mortgagee
exercising power of the sale. Mr Perish is still conducting his business affairs, at least in the form of the running of a small timber mill on the north coast of New South Wales.
It is unclear whether preferences have been given to creditors and are still being given to them in Mr Perish's wish to discharge the debts due to his creditors. Perhaps it is the usual story of the more vocal and pressing getting paid before those who are more silent. The petitioning creditor is owed a substantial debt and the debt is of some considerable age arising from the conduct of a former poultry business of Mr Perish's.
Mr Perish appears to have suffered a considerable amount of misfortune in his affairs, both business and otherwise. He has, however, at least produced to the court a letter from a firm of chartered accountants that is highly experienced in thie insolvency work. A letter dated yesterday, which, of
Mr Perish's affairs, as they are plainly relying primarily on notes in it as to the actual knowledge of the accountants of course, has, as one would expect, a large number of cautionary
what he has told them and some documents he has given them. They do discuss there, albeit it broadly, the question of whether creditors would be better off in bankruptcy or a Part 10 arrangement or some private arrangement.
The case put by the petitioning creditor to refuse any further adjournment of the petition is a very strong one indeed, but I am prepared to give a short adjournment to Mr Perish. It will be a final adjournment, subject to whatever may appear on the next occasion, in order for him to gather together proper evidence to be put to the Court on the next occasion for it to determine whether or not he should be made bankrupt. I would urge him, in his own interests, to further consult Ferrier Hodson to see what they can do by way of preparing a proper statement of his assets and liabilities, lncome and expenditure and urge him to answer any questions that they may ask of him with a view to having a full picture put before the Court on the next occasion of his financial position. The present picture is very scant indeed.
Some of the reasons advanced by Mr Perish as to why he ought not to be made bankrupt are reasons which from his point of view are valid reasons, such as seeking to pursue certain
powers of sales and things of that kind; but the fact is that persons in causes of action for fraud or improper exercise of
when a person is insolvent, to pursue actions of this kind
takes a lot of money. That money would be the money of the creditors and they may have different ideas on whether this litigation should be conducted or pursued further. These are matters one has to weigh on the scales and I cannot take those matters very much into in his favour in resisting bankruptcy. I mention that because of how he may see fit to present his case on the next occasion.
If he can obtain legal advice I would suggest he does so, though he is not unskilled in the art of lay advocacy. I should add, finally, that on the material that the Court has at the moment, and I emphasise that, an informal arrangement of the kind mentioned in the letter from Ferrier Hodson may be one that would be feasible, but there must be very large difficulties in its path.
Although the Court must always look at the number and value of creditors who support or oppose the making of a sequestration order, considering the affairs of the kind that are revealed before the Court today, and with the resistance to any informal arrangement by a substantial creditor or a number of creditors in value or number, it may well be that the Court would decide to proceed to make a sequestration order.

I have read material in the form of affidavits and exhibits today and heard the submissions of counsel for the petitioning creditor and of Mr Perish himself. Broadly speaking, the picture appears to be on the present state of

A formal arrangement of a Part 10 is perhaps in a

different category, and I will say nothing further about that.

I would also add that merely to have letters produced by creditors, such as envisaged in the letter (Exhibit 1) from Ferrier Hodson, without there being a formal meeting of creditors, is a factor which must weigh against any further adjournment of the petition and in favour of making a sequestration order. In other words, as at present advised, a prospect of a successful informal arrangement, unless supported by a very large majority in number and value of creditors, would I think have little chance of persuading a Court to further adjourn this petition.

The Court orders that:

1. The debtor file and serve all remaining evidence on which he proposes to rely in support of his opposition to the petition by 20 September 1994.

2. Any evidence in reply from petitioning creditor be filed and served by 11 October 1994.

3.   The petition be adjourned until 1 November 1994 at 10 o'clock.

4. The debtor pay the petitioning creditor's costs of

today's proceeding.

I certify that this and the

preceding four (4) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Dated: 23 August 1994

Mr Perish, the Debtor, appeared for himself

Solicitors for the Debtor	J Massie & Associates
Counsel for the Petitioning
Creditor	Mr D M Bernie
Solicitors for the Petitioning
Creditor	Coleman & Greig
Date of Hearing	23 August 1994
Date of Judgment	23 August 1994