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

[1987] FCA 423

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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:

1. The petltion be adjourned to a date to be fixed;

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2. Notice of fixation of the date is sufficiently , I ,

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

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3 . Costs be reserved.

Settlement and entry of orders is dealt with in

Rule 124 of the Bankruptcy Rules.

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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

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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

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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 a

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Court, although no reasons were given, is useful authority on the

extent of the Court's discretion to decline to make a

sequestration order in circumstances of this sort.

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

the Supreme Court, but that Court had made an order under the

Financial Emerqencv Relief Extension Act 1932 (Q.) deferring

payment of the whole of the judgment debt for a considerable

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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.

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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 one

case where the Court was satisfied that the petltion was put

forward for some legitimate end, and that it was the duty of the

bankruptcy judge to examine in each case, if the question was

raised, whether there was other sufficient cause. His Honour took

the view that it was for the debtor to show some cause overriding

the interest of the public in the stopping of unremunerative

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trading, and he mentioned other considerations of a similar sort.

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I do not regard Cain v. WhVte as deciding anything which

is critical for present purposes. The circumstances here seem to

me to be very different from those which obtained in that case,

and in particular it is of importance that the amount of the

judgment debt in Cain v. mvte was, by the standards of the time,

very large indeed. It was 7,980 pounds, at a time when there were	i '
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people working hard for one pound a week and less.

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I	The debt here is quite small, and the case	is one of a
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very different kind. It therefore seems to me that there is a

prima facie ground to refuse to make a sequestration order in the

exercise of discretion. It would seem to me to be rather

ridiculous to do so in the circumstances that the debtor is only

liable for $100 a month, but Mr. Morton has persuaded me that

rather than dismiss the petition, I should adjourn it to enable

his slde to pursue the matter in the Magistrates Court, and	I will
do that.

The order will therefore be that the petition be

adjourned to a date to be fixed; secondly, that notice of fixation

of the date 1s sufficiently given by notice to the present

solicitors acting for the parties; thirdly, that the costs be reserved.	l	. I
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: certify f h * thr; and the a preceding

~2::~s 3-2 a it-;= c o ~ y of. the msons for

I ]udc,rt.eni licrein of His Honour ! -

Mr. Justice Pincus	4
Associate :

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