Queensland Mining Corporation Ltd v RENSHAW (No.2)

[2016] FCCA 1083

FEDERAL CIRCUIT COURT OF AUSTRALIA

QUEENSLAND MINING CORPORATION LTD v RENSHAW (No.2) [2016] FCCA 1083

Catchwords:
BANKRUPTCY – Sequestration order made - application for a stay of further proceedings – whether any prejudice to bankrupt – application dismissed.

Legislation:

Bankruptcy Act 1966, ss.52(2), 52(3)

Applicant: QUEENSLAND MINING CORPORATION LTD

Respondent: HOWARD RENSHAW

File Number: SYG 2129 of 2015

Judgment of: Judge Street

Hearing date: 5 May 2016

Date of Last Submission: 5 May 2016

Delivered at: Sydney

Delivered on: 5 May 2016

REPRESENTATION

Counsel for the Applicant: Mr N Furlan

Solicitors for the Applicant: Jurisbridge Legal

Counsel for the Respondent: Mr J Johnson

Solicitors for the Respondent: Beazley Boorman Lawyers

ORDERS

1. A sequestration order is made against the estate of the respondent, Howard Renshaw.

2. The petitioning creditor’s costs of these proceedings be paid out of the estate of the bankrupt.

3. The application for a stay of proceedings is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2129 of 2015

QUEENSLAND MINING CORPORATION LTD

Applicant

And

HOWARD RENSHAW

Respondent

REASONS FOR JUDGMENT

1. This is an application for a stay of orders made by the Court, stay of proceedings in respect of a sequestration order made by the Court today. The application is made under s.52(3) of the Bankruptcy Act1966 (Cth). Mr Johnson, of counsel on behalf of the applicant, has proffered that the applicant will complete a report as to affairs within seven days but no other condition was proffered by the applicant in relation to the obtaining of a stay. Bankruptcy proceedings are ones which do involve a very significant potential change in the status of a litigant. It is important that proceedings under the Bankruptcy Act1966 are heard as expeditiously as possible, not just in the interests of the parties, but in the public interest. 

2. Proceedings initially in relation to the service of bankruptcy notice were commenced on 28 January 2015 and these proceedings were commenced on 30 July 2015.  The proceedings had been the subject of orders providing a timetable for service of evidence in relation to what was then the identified issue in the proceedings, being one of solvency that issue was conceded today. The issues which had been advanced today on behalf of the bankrupt have been the subject of an adverse determination by this Court. 

3. The mere existence of a desire to pursue the appellate review is not of itself a basis upon which a stay should be ordered under s.52(3) of the Bankruptcy Act 1966. Orders made by the Court are, until otherwise effected, taken to be correct.  There was no prejudice identified to the respondent in relation to a refusal of the stay of further proceedings under the sequestration order. The condition proposed by the respondent is not sufficient. Further, a stay is likely to give rise to further unrecoverable costs to the petitioning creditor and the merits of the application lack substance. I am not satisfied, that this is an appropriate case in which to grant the stay of further proceedings.  The application for a stay under s.52(3) of the Bankruptcy Act 1966 is dismissed.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  10 May 2016