Re Cook, W.B. v Ex parte Ingles & Tiffin (A Firm) - [1987] FCA 423

IN THE FEDERAL COURT OF AUSTRALIA

)

GENERAL DIVISION

)	QLD P662 of 1987

BANKRUPTCY DISTRICT OF THE SOUTKERN ) DISTRICT OF THE STATE OF OUEENSLAND 1

RE:	WILLIAM BRIAN COOK

Debtor

M PARTE:

INGLES & TIFFIN (A FIRM)

Creditor

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	17 JULY 1987
WHERE MADE:	BRISBANE

THE COURT ORDERS

THAT:

The petltion be adjourned to a date to

be fixed;

I	I
L .

Notice of fixation

of the date is sufficiently

I ,

[ ! ~

glven by notlce to	the	present solicitors acting	I
for the parties.

3 . Costs be reserved.

Settlement and entry

of orders is dealt with in

Rule 124 of the Bankruptcy Rules.

P=-

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION	QLD P662 of 1987
BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF OUEENSLAND

FE: WILLIAM BRIAN COOK

Debtor

EX PARTE:

INGLES & TIFFIN (A FIRM)

Creditor

PINCUS J.

17 JULY 1987

I .

EX TEMPORE REASONS

FOR JUXMENT

In this matter, the

~udgment

debt is a sum of $1,431.38.

The debt in questlon is not one sufficient to found a petition

under s.44(1) of the Bankruptcy Act

1966.

However, there is

another small amount of money due which takes

it above that.

Recently, the court in which the judgment was entered,

the Magistrates Court, has made an order (it seems common ground)

which has had the effect of deferrlng payment of the judgment so

. I

that it becomes payable by instalments of

$100 per month.

, =

Mr. Morton, who has argued the matter helpfully on

behalf of the petitioning creditor,

has drawn

my attention to the

decision of the High Court in Cain

v. Whyte (1932-33) 48

C.L.R.

639.

He says, and it seems

to me correct, that the decision of

2 .

Court, although no reasons were given,

is useful authority on the

extent

the

Court's

discretion

decline

make

sequestration order in circumstances of this sort.

In Cain v. Whvte (above), a judgment had been entered

the Supreme Court, but that Court had made

order under the

Financial Emerqencv Relief Extension Act

1932

(Q.)

deferring

payment of the whole of

the judgment debt for

a considerable

period. The Court in its bankruptcy jurisdiction had then to

consider whether it would make

a sequestration order on the basis

of the debt, and it decided to do so.

As to the exercise of the discretlon,

it may be that the

High Court intended to agree

with the remarks of the primary judge

sitting in the Supreme Cour;t in its bankruptcy ~urisdiction, and

they are set out in the report at pp.645 to

646.

What Henchman J. said, in effect, in that case, was that

there was a discretion to refuse

a sequestration order, that the

words "other sufficient cause" should not be limited to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Cook, W.B. v Ex parte Ingles & Tiffin (A Firm)

Details

AGLC: Re Cook, W.B. v Ex parte Ingles & Tiffin (A Firm) [1987] FCA 423
Case: [1987] FCA 423
Decision Date: 17 Jul 1987

CaseChat Overview and Summary

In the Federal Court of Australia, Pincus J presided over a case concerning a bankruptcy petition filed by Ingles & Tiffin (A Firm) against William Brian Cook. The central issue was whether Cook's debt, which was initially insufficient to warrant a bankruptcy petition, could be considered when combined with a smaller sum that brought the total above the threshold. The court had to decide whether the small nature of the debt, coupled with a recent order deferring payment into monthly installments, justified refusing a sequestration order. This decision relied heavily on the precedent set by the High Court in Cain v. Whyte, where the court had exercised its discretion to refuse a sequestration order due to the large amount of the debt and the deferment of payment.

Pincus J examined the circumstances of the case, noting that the total debt in question was relatively small and that the Magistrates Court had already deferred payment into manageable monthly installments. The judge considered the High Court's decision in Cain v. Whyte, but concluded that the current case was sufficiently different, particularly due to the smaller amount involved. Pincus J reasoned that it would be inappropriate and perhaps even ridiculous to grant a sequestration order for such a small debt, especially given the deferment order. Therefore, the court decided to exercise its discretion by adjourning the petition, allowing the creditor to pursue the matter further in the Magistrates Court. Pincus J ordered the petition to be adjourned, notice to be given to the parties' solicitors, and costs to be reserved.

Orders