Re Biggar, D.R. & J.L. Ex parte Biggar, D.R. & J.L. v G. James Glass & Aluminium (Qld) Pty Ltd

[1991] FCA 377

JUDGMENT No. ?.?7 S!.-

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	)
BANKRUPTCY DISTRICT OF THE	) No. QB 608 of 1991
STATE OF OUEENSLAND	)

RE:	DONALD ROGER BIGGAR and JANET LEIGH BIGGAR
EX PARTE:	DONALD ROGER BIGGAR JANET LEIGH BIGGAR

(Applicants)

G. JAMES GLASS & ALUMINIUM (OLD.1

PTY. LTD.

(Respondent)

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	18 APRIL 1991
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1 .    The bankruptcy of each applicant be annulled.

REGISTRY

-* NOTE Settlement and entry of orders is dealt with in Rule
124 of the Bankruptcy Rules.

04 JUL 1991

FEDERAL COURT O F

AUSTRALIA

PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA	1
GENERAL DIVISION	1
BANKRUPTCY DISTRICT OF THE	) No. QB 608 of 1991
STATE OF QUEENSLAND	)

DONALD ROGER BIGGAR and

JANET LEIGH BIGGAR

EX PARTE: DONALD ROGER BIGGAR

JANET LEIGH BIGGAR

(Applicants)

G. JAMES GLASS & ALUMINIUM (OLD.) PTY. LTD.

(Respondent)

CORAM:	PINCUS J.
PLACE :	BRISBANE
m:	18 APRIL 1991

EX TEMPORE REASONS FOR JUDGMENT

This is an application to annul a bankruptcy. According to the evidence, there was a misunderstanding between the male bankrupt and the creditor, the former thinking that the latter had agreed that the petition would be

adjourned. In fact, as I find, the creditor had not so	agreed. The debtor's solicitor, Mr. McGaw, apparently was
well aware before the hearing of the petition on 19 March last that the matter was going ahead. He tried to contact his client several times, but his letters, according to the bankrupts, did not reach them.
The evidence is to the effect that the bankrupts have a substantial surplus of assets over liabilities and a relatively minor liquidity problem. The petitioning creditor does not object to an annulment, but it seems to me somewhat doubtful whether, in the circumstances I have outlined, the sequestration order "ought not to have been made" within the meaning of s.154(1) of the Bankru~tcv Act 1966. One must consider what the Court ought to have done if it had known all the true facts: Re Ditfort: Ex Parte DeDUtV Commissioner of Taxation f N . S . W . 1 (1988) 83 A.L.R. 265 at 267. I harbour some doubts as to the veracity of the case presented; the expressions used in the bankrupts' affidavits tend to create the impression that the male bankrupt convinced himself, without much foundation, that he had obtained agreement to an adjournment. Further, the evidence that the bankrupts received none of their solicitor's letters is not entirely easy to accept. Nevertheless, I have come to the conclusion that I should hold that the bankrupts believed the proceedings were to be adjourned and that the circumstances were such that, had the Court been fully aware of them, a sequestration
order ought not to have been made.
The discretion to annul is a wide one and the Court must exercise it having regard to the interests of the parties and the public: Boral Johns Perrv Industries Ptv. Limited. v. Piccardi (Full Court, unreported, 23 June 1989 at p.17). The petitioning creditor has, by its director Mr. Saragossi, sworn, as I have mentioned, that it does not object to an annulment, and there is some evidence that the other creditors are not large and also do not object.

It will be ordered that the bankruptcy of each

applicant be annulled.

I certify that this and the two preceding pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus.

G-aA- m ~ , M S -

Associate

~~t~ I6 Af'vlI \qq'