Re Cameron, D.J. v Ex parte Westpac Banking Corporation

[1994] FCA 1034

RE: DONALD JAMES CAMERON
EX PARTE: WESTPAC BANKING CORPORATION
No. QP2277 of 1994
FED No. 1034/94
Number of pages - 2
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND
KIEFEL J

CATCHWORDS

Bankruptcy - sequestration order - whether "other sufficient cause" to justify the Court refusing to make order

Bankruptcy Act 1966 - s 52
Public Trustee Act 1978 - s 95

Fitzpatrick v Jackson (1989) 2 Qd R 542 Cons
Re Bond Ex parte Hong Kong Bank of Australia Ltd (1991) 33 FCR 426 Refd

HEARING

BRISBANE, 20 December 1994
#DATE 21:12:1994

Counsel for the applicant: Mr D.K. Boddice

Solicitors for the applicant: Feez Ruthning

The respondent appeared in person.

ORDER

THE COURT ORDERS THAT:

1. A sequestration order be made against the estate of the debtor Donald James Cameron.

2. The petitioning creditor's costs of and incidental to the

petition in this matter (including reserved costs) be taxed and

paid in accordance with the Bankruptcy Act 1966.

Date of Commission of Act of Bankruptcy: 4 October 1994

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

JUDGE1

KIEFEL J The petitioning creditor seeks an order for sequestration, the petition being founded on a failure to comply with a bankruptcy notice which required the debtor to pay or secure the amount of a Judgment with respect to costs made on 27 November 1992 in the Supreme Court of Queensland and which costs were taxed and certified as due on 15 August 1994. The Order was consequent upon the decision of the Senior Judge Administrator dismissing Mr Cameron's writ as a nullity, it being the case that he was at the time of its institution a prisoner in custody and therefore required the consent of the Public Trustee under s.95 of the Public Trustee Act 1978 as amended to the bringing of the action. One basis for the applicant's submission that the Court ought now decline to make a sequestration order was that he intends to bring an appeal from that decision, although no application has as yet been made, as would be necessary, for an extension of the time for the institution of that appeal. Mr Cameron's point was that there exists authority in England to the effect that the necessary consent could be given retrospectively, although he was unable to refer me to such a case. The decision of the Full Court of Queensland in Fitzpatrick v. Jackson (1989) 2 Qd R 542 however stands as contrary to such a proposition. There the Full Court held, upon a consideration of the construction of s.95, that consent could not be given nuc pro tunc and I can detect no error in that reasoning. Mr Cameron has subsequently informed me that he accepts that the submission must fail.

1. The other point raised by Mr Cameron which required consideration was whether an action brought by him against the petitioning creditor for "negligent trespass", in the Supreme Court of Queensland, ought to be taken into account. In that action, which was instituted last month, he claims over $1,000,000.00 damages by way of loss of income by reason of the actions taken by Westpac and which led to his conviction and custody in 1991. The action has progressed, I was told, to close of pleadings. The substance of the claim was outlined before me but no more and this would itself have prevented my holding the requisite level of satisfaction that there was a claim of substance. Although the cause of action is now expressed in different terms the submissions outlined indicate that it is based on the same facts previously sought, unsuccessfully, to be litigated.

2. In any event I did not understand Mr Cameron to submit that such a claim amounted to a counterclaim, set off or cross demand with the meaning of s.40(1)(g). Rather, he contended that under s.52 there was "other sufficient cause" shown, which would however require him to establish that there was some exceptional circumstance which justified the Court refusing to make the Order to which the petitioning creditor was prima facie entitled.

3. It was not suggested that there was any basis, other than that dealt with above, for attacking the validity of the notice or petition. A connection between the debt created and the recent proceedings is not readily apparent. It was not said that the loss of income said to be the measure of the debtor's damage has resulted in his now inability to pay and I could not come to such a conclusion on the material. If there were any real prospects of an award of damages and they could be quantified, Mr Cameron might be able to say he would then be in a position to pay, but I cannot conclude the action has any real substance or prospect of success and Mr Cameron has never sought an extension of time within which to pay. That seems to leave the question as one generally as to the prior conduct of the petitioning creditor. I do not however consider it could be said to weigh against the making of the order sought on the notice and petition. Nor do I consider that the other matters raised by Mr Cameron, namely that the bankruptcy notice was based on only one of two Judgments for costs and that that other order made by White J was incorrect, amount to a ground for refusal. There was good reason for the former course (see Re Bond Ex parte Hong Kong Bank of Australia Ltd (1991) 33 FCR 426) although this would not prevent the petitioning creditor proving for those costs in the bankruptcy to follow.

4. I propose therefore to make an order sequestrating the estate of the judgment debtor. I note from the Registrar's certificate that the date of the act of bankruptcy is said to be 4 October 1994.