Re Bleyer,R Summary | CaseChat AU

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.

The case of Re Bleyer, R [1993] FCA 4500 involved Roland Bleyer as the applicant and TCN Channel 9 Sydney as the respondent. Bleyer sought an order to restrain the judgment creditor from proceeding with a petition in bankruptcy, which had been lodged with the Registry on the day of the hearing. The petition cited three acts of bankruptcy by Bleyer, including his failure to comply with a bankruptcy notice, his departure from his dwelling house and Australia with intent to defeat or delay creditors, and his continued absence from Australia with the same intent. The bankruptcy notice was based on a certificate of costs from a defamation case in which Bleyer had been ordered to pay costs of approximately $80,000.

The primary legal issue before the court was whether the creditor should be restrained from proceeding with the petition in bankruptcy. The court had to determine if the acts of bankruptcy cited in the petition were valid and whether there were any circumstances that warranted the issuance of an order to prevent the creditor from proceeding with the petition. The court also needed to consider the merits of Bleyer's appeal against the defamation proceedings and the potential impact on the petition in bankruptcy.

The Federal Court, in dismissing the application, found that Bleyer had indeed committed an act of bankruptcy by failing to comply with the bankruptcy notice. While the court expressed sympathy for Bleyer's situation, given the potential merit of his appeal and the delay caused by the creditor's counsel, it held that there were insufficient grounds to restrain the creditor from proceeding with the petition. The court noted that the second and third grounds of the petition were not contested and that the costs order was in effect at the time the bankruptcy notice expired. The court further opined that if the appeal was successful, it would be appropriate to grant Bleyer an adjournment to prosecute his appeal with due diligence.

The court dismissed the application and made orders noting the undertaking by Bleyer's solicitor to file the application in the Registry. The court also specified that if a petition was issued, the costs of the application would be costs in the petition, and if no petition was issued, there would be no order as to costs.

Re Bleyer,R

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

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

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.