Re Burlock, A.D. Ex parte Deputy Commissioner of Taxation of the Commonwealth of Australia v Taylor, B. K

[1993] FCA 735

7 3 5 , 93

JUDGMENT NO. ..... .a . . . . . . . . . .,a.*,

IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION	)
BANKRUPTCY DISTRICT OF THE	) NO VX 196 of 1992
STATE OF VICTORIA	)

Re: ALAN DOUGLAS BURLOCK

A debtor

Ex Parte: DEPUTY COMMISSIONER OF TAXATION

OF THE COMMONWEALTH OF

AUSTRALIA

Applicant

- and -

2 0 OCT 1993

FEDERAL COURT OF BARRY KEITH TAYLOR

AUSTRALIA

PRINCIPAL	(As Trustee of the Deed of
REOISTRY	Arrangement of Alan Douglas Burlock)

Respondent

Coram:	Olney J
Place:	Melbourne
Date :	1 October 1993

when judgment in this matter was given on 3 September 1993 I reserved the question of costs and invited the parties to make written submissions, which they have now done.

In the proceedings, the applicant, a creditor of the debtor, successfully sought to have a deed of arrangement executed by the debtor pursuant to Part X of the Bankruptcy Act 1966 (the Act) declared void, or alternatively terminated. The applicant also sought a sequestration order in the event that the deed was either declared void or terminated. The debtor disputed the applicant's standing as a creditor. In the result, I held that the applicant was a creditor and had standing to bring the application. I made an order declaring

the deed void on the ground advanced by the applicant, namely

by reason of the failure of the controlling trustee to comply with the obligation imposed by the Act to state, in his report pursuant to s 189A, his opinion as to whether or not it would be in the best interests of the debtor's creditors to deal under Part X with the debtor's affairs in the manner indicated in the debtors' statement under s 188(2)(c)(ii).

In my reasons I dealt with the various bases on which the creditor sought, in the alternative, to have the deed terminated. It was not necessary to do so because those issues were irrelevant once the decision was reached that the deed should be declared void. However, all of the issues raised in the application had been argued in full and it was appropriate that I make findings in relation to them. MY conclusion was that, had I not been of the view that the deed should be declared void, I would not have ordered that it be terminated; and for reasons set out in the judgment, I refused the application for a sequestration order.

The trial of the application occupied two full days and about

1 hour 40 minutes on the third day. There was very extensive

affidavit evidence accompanied by numerous documentary exhibits. Some of the evidence related solely to the alternative relief of termination sought by the applicant.

It is not posslble to quantify the proportion of the evidence applicable to that ground as there was a considerable degree of overlap of the evidenciary material dealing with the two grounds. No additional evidence was adduced in relation to

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the application for sequestration and the argument on that
issue occupied very little of the court's time.

The debtor was unsuccessful in his attack on the applicant's standing, and on the major issue relating to the controlling trustee's obligation to express an opinion in his report. The trial of those issues would inevitably have occupied two court days. The issues relating to the application for termination on which the debtor would have succeeded if it had

I

been the only issue, occupied some of the court's time and it	I
is fair to say that but for the time spent on that issue the trial would have been concluded within two days.
In the circumstances, it is my opinion that in the exercise of-	-
my discretion to award costs, it is just and equitable for the
applicant to have its costs of the application but that same
should be taxed on the basis of a hearing which occupied two	i
days. There should be no order for any costs incurred in relation to the written submission on costs.

There will be an order that the debtor pay the applicant's	b.
costs of the application to be taxed on the basis of a two day hearing.

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice

Olney	-	A
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Mr D. Meagher QC and Mr M. Crennan (instructed by Australian

Government Solicitor appeared for the applicant).

Mr G. Beaumont QC and MS J. Davies (instructed by D.E.

Phillips) appeared for the debtor.

The trustee did not appear.

JUDGES' CHAMBERS

FEDERAL COURT OF AUSTRALIA

450 LITTLE BOURKE STREET

J AUSTRALIA L-

*;>x>w<<<<dLL MELBOURhT. 3000

18 October, 1993

Ms. Jan Costello,
Principal Registry,
Federal Court of Australia,
Level 16,
Law Courts Building,
Queens Square,

SYDNEY: N.S.W. 2000.

Dear Ms. Costello,

Re: Computerised Leaal Information Retrieval Svstem

I enclose the following word processing disk (judgment included) for inclusion in the data base of Federal Court Judgments.

1.   The Freeman Cosmetics Corporation v. Jenola Trial Pty. Ltd. (ACN 055 511 218) (Trading as South Pacific Cosmetics) & Anor. - VG194 of 1993 - Single Judge - Jenkinson JJ - Melbourne - 18 October, 1993.

Please return the disk when finished with for further use.

Yours faithfully,

Lois Bendall

Secretary to Mr. Justice Jenkinson