Re Bleyer,R

[1993] FCA 427

IN THE FEDERAL COURT OF AUSTRALIA

1

NEW SOUTH WALES DISTRICT REGISTRY	) No. NN 4500 of 1992
GENERAL DIVISION	1

Re:  ROLAND BLEYER

Applicant

Ex parte:  TCN. CHANNEL 9 SYDNEY

Respondent

Morling J 24 February 1993

REASONS FOR JUDGMENT

EX TEMPORE

This is an application for an order that the judgment creditor be
restrained from proceeding wth a petition in bankruptcy. I understand the

petition was lodged with the Registry earlier today. The petitlon alleges three

separate acts of bankruptcy as follows:

"l. That the debtor failed on or before 16 January 1993 either to comply with the requirements of a bankruptcy notice deemed to have been sewed on him on 18 January 1993 or to satisfy the court that he had a counter claim set off or cross demand equal to or exceeding the sum spmfied in paragraph A of the bankruptcy notlce.

REGISXRY

2. The debtor departed from his dwelling house, usual place of business and Australia with intent to defeat or delay his creditors

3. The dcbtor remains out of Australia w ~ t h the Intent to defeat or delay lus

2 8 JU! 1993

A m U A

PRINCIPAL

The bankruptcy notice was based upon a certificate of costs issued

out of the Supreme Court of New South Wales in proceedings in which the debtor sued the creditor for defamation. The debtor failed in those proceedings

and was ordered to pay the costs of them. Those costs were agreed at about $80,000 and a certificate of taxation of the costs was issued nearly 12 months

ago. The bankruptcy notice is based upon the debtor's failure to pay the costs.

The debtor has appealed to the Court of Appeal of New South

Wales against the verdict entered against him in the defamation proceedings.

Counsel has advised that the appeal has considerable merit and may well

succeed.

The debtor has made an application to the Court of Appeal for a

stay of the order for payment of the costs. The application has been l~sted in the Court of Appeal but has not yet been heard, the reason being that counsel for the creditor was not available in court when the application was called on.

The application for stay accord~ngly was stood over. I have considerable

sympathy for the debtor in that respect.	The hearing of his application for the
stay in the Court of Appeal has delayed because of the failure of the creditor's

counsel to be present in court at the appropriate time.

Nevertheless, it seems to me that it would be wrong for me to order

the Registry not to issue the petition. What Mr Newman has submitted does

not touch the second and third grounds in the bankruptcy petition. Moreover it seems to be common ground that at the time the bankruptcy notice expired the costs order was in force and had not been stayed. It therefore seems plain that an act of bankruptcy has been committed.

If I do not make the order sought the result may well be that, in

due course, the petition will come before another judge of this Court when it is listed for hearing. It is not for me to say what attitude that judge may take to

an application for an adjournment of the hearing of the petition. However, I must say that if I were the judge hearing the petition and I were informed that the application for a stay m the New South Wales Court of Appeal had succeeded I would be mlnded to grant the debtor such an adjournment as would enable him to prosecute his appeal, provided, of course, he prosecuted it with due diligence. I say nothing, of course, about grounds 2 and 3 m the petition,

about which I know nothing.

But as I have said, there does not appear to me to be sufficient

reason for me to make the order sought.

It does seem to me that the facts which have given rise to this

for the applicant and subject to hearing from Mr Newman, I propose to dismiss	application are very unfortunate. As I have said, I have a good deal of sympathy
this application and make no order as to costs.

I make orders as follows:

1.        I note the undertaking gven by the solicitor for the debtor

to file the application in the Registry.

2.         Application dismissed.

3.          In the event of a petition being issued, costs of the application to be costs in the petition.

4.         In the event of no petition being issued, no order as to

costs.