Re Davis, J.N.

[1992] FCA 662

JUDGMENT NO. ..l?.k.f;..,

DERAL COURT OF AUSTRALIA	1	No. QB 989 of 19
RE	a	JOHN NOEL DAVIS and COLLEEN LESLIE DAVIS

EX PARTE: ROBERT LEE WOLCOTT and

CAROLEE CORBETT WOLCOTT

MINUTES OF ORDER

JUDGE MAKING ORDER:	Drummond J
DATE OF ORDER:	28 August, 1992
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

1. The taxed costs of Robert Lee Wolcott and Carolee Corbett Wolcott pursuant to the order of the Honourable Mr. Justice Spender made on 10 June, 1988 be paid with priority in accordance with the Bankruptcy Act 1966.

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

The applicants' costs of and incidental to this application be taxed and paid with priority in accordance with the Bankruptcy Act 1966.

IN THE FEDERAL COURT OF AUSTRALIA	1	No. QB 989 of 1988
GENERAL DIVISION	1
WKRUPTCY	DISTRICT or	)

THE STATE OF OUEENSLAND )

RE :  JOHN NOEL DAVIS and
COLLEEN LESLIE DAVIS

EX PARTE: ROBERT LEE WOLCOTT and

CAROLEE CORBETT WOLCOTT

Applicants

m: Drummond J

PLACE: Brisbane

DATE: 28 August, 1992

EX TEMPORE REASONS FOR JUDGMENT

This is an application for an order that the taxed
costs of Mr. and Mrs. Wolcott pursuant to an order made by Mr.

Justice Spender on 10 June, 1988 be paid with priority in

accordance with the Bankru~tcv Act 1966 ICthl.

The circumstances are that in June 1988, Mr. & Mrs.

unsuccessful. On 10 June, 1988 Mr. Justice Spender dismissed	notice issued by Mr. and Mrs. Wolcott. They were Davis, who are both now bankrupt, challenged a bankruptcy	the Davis' challenge to the bankruptcy notice and ordered that they pay Mr. and Mrs. Wolcott's taxed costs of and incidental to the Davis' application to set aside the bankruptcy notice.
It was as a result of non-compliance with that notice that sequestration orders were made in relation to Mr.
& Mrs. Davis on 25 August, 1988.

The material indicates that the estates of the bankrupts are insufficient to pay all claims made by unsecured creditors and, indeed, that unless an order of the kind now sought is made in favour of Mr. and Mrs. Wolcott, who were the petitioning creditors, their costs of successfully resisting the Davis' application made in June 1988 are unlikely to be paid otherwise than by attracting a dividend in the ordinary way upon proof being lodged in respect of those costs.

It seems to me that the proceedings in relation to the challenge to the bankruptcy notice were successfully defended by Mr. and Mrs. Wolcott, an act which was for the benefit of all creditors, since the sequestration orders were made in reliance upon non-compliance with that notice. I have power under 37(1) of the Bankru~tcv Act to vary an order of the kind here in question. In these circumstances I am prepared to vary it and to make an order in terms of paragraphs 1 and 2 of the application.

I certify that this and the preceding

page is a true copy of the reasons
for judgment herein of the Honourable

Mr. Justice Drummond.

Associate:

Date :  28 August, 1992