Quinn, G.

[1990] FCA 537

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA)

GENERAL DIVISION	1
) No. P 1196 of 1990
BANKRUPTCY DISTRICT OF THE STATE j	OF NEW SOUTH WALES 1

,l !

RE: G. OUINN

C O W :	WILCOX J
PLACE :	SYDNEY
DATE :	4 SEPTEMBER 1990

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.        The hearing of the petition be adjourned until

9.30am on Friday, 7 September 1990.

Note:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. [See also
Order 37 rule 2 ( 3 ) ] .

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION	)
1 No. P 1196 of

1990

BANKRUPTCY DISTRICT OF THE STATE OF) NEW SOUTH WALES 1

RE: G OUINN

CORAM:  WILCOX J

PLACE	:	SYDNEY
DATE :	4 SEPTEMBER 1990

EXTEMl?ORE REASONS FOR JUDGMENT

WILCOX J: When this matter came before the Registrar this morning, an application was made to substitute for the petitioning creditor, Applied Biotechnology Pty Limited, another creditor, namely David Robert Reis.

It appears that Applied Biotechnology Pty Limited obtained a judgment against the debtor, Geoffrey Qulnn, in the Dlstrict Court at Wellington. That judgment was obtained in default of any defence. A writ of execution was subsequently issued but returned unsatisfied. That return is the act of

bankruptcy relied upon in the petition now before the Court. The debtor has subsequently made an application to the District Court to set aside the judgment obtained by Applied Biotechnology. That application has not yet been dealt with.

Because of the problems which occurred in its own proceeding, Applied Biotechnology apparently agreed that David Robert Reis should be substituted; and, as I have said, this occurred today.

David Robert Reis obtained a judgment against the debtor in the District Court at Wellington on 14 May 1990 in the sum of $44,206.03. It is not suggested that this judgment is vulnerable to be set aside. The claimed amount arises out of a deed of release signed between the parties on 24 July 1989. The deed provided for the payment of $40,000 by the debtor to M r Reis, with interest until payment at the rate of 19 per cent per annum.

Before me counsel for the debtor sought an adjournment of the hearing of the petition until after the determination of his client's application to set aside the judgment obtained by Applied Biotechnology. In making that application, counsel expressly conceded, I think rightly,

that, even if the judgment were set aside, this would not

affect the fact that an act of bankruptcy was committed when

the writ of execution was returned unsatisfied. The inclusion of an unsatisfied return of a writ of execution, as an act of bankruptcy in the legislative scheme, arises from the fact that this is an indication of an inability by a person to pay his or her debts as they become due. Whether or not the judgment was properly obtained is irrelevant, both to the rationale of the act of bankruptcy and to the statutory expression thereof.

Counsel also conceded that his client does not attack the validity of the judgment obtained by Mr Reis or suggest that money is not owing to Mr Reis.

Having regard to these facts, it seems to me that no good purpose would be served in granting the adjournment which has been sought. As I say, even if it succeeds, there would remain an act of bankruptcy of which M r Reis is entitled to take advantage; and there is no contest about the debt to Mr Reis. Accordingly, I do not think that this is a case for a lengthy adjournment of the nature sought.

Another point taken by counsel for the debtor arises out of the fact that only facsimile copies of the affidavits of Mr Reis and of search in the Wellington District Court are presently available in Sydney. Each of the facsimile copies contains the signatures of the deponent and the witness. In

terms of the information conveyed, they are just as useful as originals. As counsel frankly said, there is not much merit

in the submission. However, bearing in mind that bankruptcy does affect status and has traditionally been a matter where the Court insisted upon matters being dealt with in the most formal way, I think that I should accede to his submission to the extent of declining to make a sequestration order until the original affidavits are available. Apparently, they are presently in the post and are likely to be available within a day or two.

Accordingly I will adjourn the hearing of the petition until 9.30am on Friday next, 7 September. I indicate that if the original affidavits are available at that time then, unless some other matter arises of which I am not presently aware, I propose to make a sequestration order at that time.

I certify this and the three (3)
preceding pages to be a true copy of
the Reasons for Judgment of
his Honour Justice Wilcox.

Associate:
Date:

Counsel for the Creditor:	D J Durston
Solicitors for the Creditor:	Johnson & Company
Counsel for the Debtor:	T E Harrison

Solicitor for the Debtor:  Graham L Berry

Date(s) of hearing:  4 September 1990