Re Cahill, S.I

[1991] FCA 893

IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION	1
BANKRUPTCY DISTRICT OF THE	) No. QN 904 of 1991
STATE OF OUEENSLAND	)

RE:	$TUART IAN CAHILL and MAYLIE FRANCIS FRANKLIN
EX PARTE:	SCI OPERATIONS PTY. LTD. TRADING AS SMORGAN ARC

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	16 AUGUST 1991
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    The application to set aside the bankruptcy notice which was filed 18 July 1991 and sought in addition other relief be dismissed.

2.    The petitioning creditor's costs of and incidental to that application be the petitioning creditor's costs in the petition if and when one is issued, PROVIDED THAT if the creditor does not issue a petition during this calendar year of 1991 then the costs just mentioned may be taxed by the creditor against the debtors.

NOTE:	Settlement and entry of orders is dealt with in Rule
124 of the Bankruptcy Rules.
IN THE FED~RAL	COURT OF AUSTRALIA

GENERAL DIVISION

BANKRUPTCY DISTRICT OF THE	1	No. QN 904 of 1991
STATE OF OUEENSLAND	1

RE:	STUART IAN CAHILL and MAYLIE FRANCIS FRANKLIN
EX PARTE:	SCI OPERATIONS PTY. LTD. TRADING AS SMORGAN ARC

C O W :  PINCUS J.

W: BRISBANE

m: 16 AUGUST 1991

EX TEMPORE REASONS FOR JUDGMENT

This is a bankruptcy matter in which the judgment

debtors seek an adjournment of an application they have made
to set aside the bankruptcy notice. The judgment creditor
obtained its judgment in the Magistrates Court of Queensland
on 20 June 1991 and the time for compliance with the notice
has admittedly expired. There is evidence that attempts are

being made to raise the money to pay the debt but it does not

appear to me that that evidence has any present relevance. In

particular, it does not tend to show that the bankruptcy

notice should be set aside.

Counsel for the debtors said that the application to

application to the Magistrates Court to permit payment of the
debt by instalments. Counsel said this would achieve a stay. set aside should be adjourned to await the outcome of an was a proper foundation of the bankruptcy notice when the

86 A.L.R. 645 and his Honour concluded that an order for payment by instalments, staying execution, made after service of the bankruptcy notice, does not render the notice liable to be set aside.

notice was issued, such an order as was sought from the appears to me to be correct. The matter was discussed by Burchett J. in Re Schekeloff: Ex parte Schekeloff v. Hovkins Group Ptv Ltd (1989)

I respectfully agree with that conclusion and

propose to refuse an adjournment of the application to set

aside the notice. If there is no other ground of attack on

the notice, then the application to set aside must be

dismissed. It appears to me clear that an order of the

Magistrates Court giving time to pay would not make the bankruptcy notice bad retrospectively and that the questions raised by the debtors' material would have to be considered if and when a petition is issued and comes before the Court for hearing.

The order will therefore be that the application to

not issue a petition during this year of 1991, then the costs which I have just mentioned may be taxed by the creditor against the debtors.

set aside the bankruptcy notice, which was filed on the 18 and the petitioning creditor's costs of and incidental to that application will be petitioning creditor's costs in the petition if and when one is issued. Provided the creditor does

I certify that the two

preceding pages are a true
copy of the reasons for
judgment herein of his

Honour Mr. Justice Pincus

/

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Associate

Date lb h l r ) m s t 1971