Re Draper, John Ex parte Brosalco Pty Ltd

[1983] FCA 125

Re: JOHN DRAPER
Ex parte: BROSALCO PTY. LIMITED (1983) 72 LR 179
No. P671 of 1982
Bankruptcy Petition

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT IN THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY
McGregor J.(1)

CATCHWORDS

Bankruptcy Petition - Notice of Opposition - debt on which petition relied said not to be of judgment debtor - going behind judgment - original contract with judgment debtor - payments of debt by company not judgment debtor - dealing by petitioning creditor consistent with contract by him personally - order extending time at the expiration of which the petition will lapse - order made after 12 months had expired.

Bankruptcy Act 1966 s.33(1)(c), s.52

Bankruptcy - Petition - Notice of opposition - Debt on which petition based said not to be that of judgment debtor - Court going behind judgment - Original contract with judgment debtor - Payments of debt by company, not judgment debtor - Dealing by petitioning creditor consistent with contract by him personally.

Bankruptcy - Petition - Order extending the time at the expiration of which the petition will lapse - Order made after expiration of twelve months - Bankruptcy Act 1966 (Cth), ss 33(1)(c), 52.

HEADNOTE

The petitioning creditor obtained a default judgment against the debtor in the District Court. The debtor applied to set the judgment aside but failed on the basis that there was no viable or prima facie defence, nor any reasonable excuse shown for the delay in applying (over one year). A bankruptcy notice was served and the debtor applied unsuccessfully again to set aside the judgment. A petition was issued and served. A notice of intention to oppose petition was filed. The basis of opposition was that the judgment debt was incurred in fact by a company of which the debtor was a director, and that the judgment was obtained by fraud in that the creditor knew the debt was that of the company.

The creditor sold cane goods and had dealt with the debtor over a period of two years prior to the date of judgment. At the first meeting the debtor advised that the goods were to be invoiced to a firm - Tropical Cane Centre. The goods were i invoiced in that name and correspondence was also in that name. Payments for various orders had been made by cheques from Tropical Cane Centre, the company, from the debtor and one from another entity. There was no evidence of any communication whereby the creditor was told that the company was the purchaser. The company was in financial difficulties and had never offered to pay the debt. The debtor also took the point at the end of the hearing in June 1983 that, as twelve months had expired since the petition was presented, it had lapsed.

Held: (1) That the court should not go behind the judgment; the case was not one where there was a bona fide allegation that no real debt lay behind it; there had been more than merely a preliminary investigation of the merits of the attack on the judgment and, there was satisfactory proof of the debt and the entitlement to the judgment. There was no justification for the allegation of fraud.

Wren v. Mahoney (1972) 126 CLR 212; Corney v. Brien (1951) 84 CLR 343, considered.

Simon v. O'Gorman Pty Ltd (1979) 41 FLR 95, referred to.

(2) That s. 52(5) of the Bankruptcy Act 1966 (Cth) does not expressly provide that the court may not after its expiration extend the relevant time at the expiration of which the period lapses; accordingly, s. 33(1)(c) of the Act permits the life of a petition to be extended after its expiration.

The Metropolitan District Railway Company v. Sharpe (1880) 5 App Cas 425; Paton's Trustees Petitioners (1923) SLT 276, considered.

Esso Research and Engineering Co. v. Commissioner of Patents (1960) 102 CLR 347; Streimer v. Tamas (1981) 54 FLR 253; James v. Abrahams (1981) 51 FLR 16, referred to.

(3) That the word "may" where used in s. 52(a) of the Act imparts a discretion referable to the wisdom of extending the life of the petition, rather than permissively to doing so within the period of twelve months.

(4) That it may be that the court has inherent power to extend the life of a petition after its expiration.

Streimer v. Tamas (1981) 54 FLR 253, referred to.

(5) That, as the petition in this case lapsed only fortuitously due to the passage of time during the adjournment of the hearing, and the hearing had proceeded on the basis of its having not lapsed, it was an appropriate case in which to extend time.

HEARING

Sydney, 1983, April 12; June 22; July 1. #DATE 1:7:1983

PETITION.

Petition for a sequestration order.

T. J. Christie, for the petitioner.

T. M. Healey, for the debtor.

Cur. adv. vult.

Solicitors for the petitioner: Lee, Hourigan & Brooks.

Solicitors for the debtor: O'Connor Bellamy.

P.H.M.

ORDER

1. The period of the expiration of which the petition will lapse will be a period of 24 months commencing on 17 June 1982.

2. A Sequestration Order against the estate of the judgment debtor.

3. The judgment debtor is to pay the petitioning creditor's costs of and incidental to the petition and the opposition thereto including reserved costs.

JUDGE1

BROSALCO PTY. LIMITED (petitioning creditor) has presented a petition for the sequestration of the estate of JOHN DRAPER (judgment debtor) said to be in respect of an amount of $6,712.68 being the amount due under the final judgment recovered in the District Court on 17 October 1979 together with interest amounting to $1,554.03 as at 9 February 1982.

In respect of that Petition, the judgment debtor has filed a Notice of Opposition which, omitting formal parts, reads:-
"1. The debtor, (as alleged) is solvent and able to pay his debts as and when they fall due. 2. The debtor is not indebted to the petitioning creditor as the debt the subject of the judgment was incurred by a company of which the debtor was a director.

3. Default judgment was obtained by the judgment creditor by fraud in that an affidavit of debt was sworn when the deponent knew full well that the debt was a company debt."
The said Notice was filed on 30 July 1982. Counsel for the judgment debtor informed me that he was not proposing to try to support para.1 of the Notice of Opposition.

It will be useful to refer to the sequence of events leading up to the present proceedings.

It appears that the alleged transaction between the petitioning creditor and the judgment debtor commenced subsequent to early 1976 when the petitioning creditor advertised a sale of cane products. Thereafter, the judgment debtor came to the petitioning creditor's showroom and it is alleged that arrangements were made for the sale of stock of cane furniture whereafter deliveries were made from time to time to the judgment debtor. A statement of debts alleged to have been incurred for these deliveries is annexed to an affidavit of 30 August 1982 of Iris Broese van Groenou, to whom I shall refer hereafter as van Groenou, a director of the petitioning creditor showing amounts of invoices debited and amounts paid by way of creditors of the account from time to time. The first entry on the statement is in July (possibly the 5th) 1976 and the last, other than a reference to writing off a bad debt, is on 4 October 1978. In fact, the last four entries on the statement of account are of 5 September 1977, 6 January 1978, 9 July 1978 and 4 October 1978, being credits as to two payments of $1,000.00 and as to two other payments, $500.00 each.

A Statement of Liquidated Claim in respect of this debt was issued on 10 October 1978 and said to have been served on the judgment debtor on 13 October 1978, containing a common money count for goods sold and delivered in the said sum of $6,537.18., being the balance then outstanding between the parties. The judgment debtor claimed in an affidavit of 18 December 1981 that the said Statement of Liquidated Claim did not come to his notice until some three months later, which would be sometime about the end of January 1979. However, in a chronology of events produced at my invitation, and I understood, by agreement, it is said that the Statement of Claim was served on 13 October 1978. On 17 October 1979, judgment was signed against the judgment debtor for the sum of $6,537.18 together with $175.50 for costs i.e. $6,712.68. On 14 January 1980, an affidavit was sworn and lodged in court on 18 January 1980 to ground a writ of execution against the judgment debtor. From a judgment of his Honour Judge Melville Q.C. in the District Court, delivered on 12 December 1980, it appears there was an attempt to serve the writ but no history thereafter of that writ. However, from the judgment it appears that there was an attempted execution by the plaintiff on or about 14 April 1980. No goods were found. These events reveal that there was a significant passage of time during which, so far as evidence reveals, there was no denial that the petitioning creditor was the proper plaintiff. On 27 or 28 November 1980 Notice of Motion to set aside the judgment was filed.

On 12 December 1980, in the judgment to which I have referred the learned District Court Judge dismissed this application. He was not satisfied there was any viable type of defence or prima facie defence, He also considered there was no reasonable excuse shown for the delay in making the application.

On 5 May 1981, an application was made for the issue of a Bankruptcy Notice; it was issued on 27 May 1981 and served on the judgment debtor on 21 November 1981. By Notice of Motion dated 18 December 1981 a further application was made to the District Court to have set aside the judgment the subject of the Bankruptcy Notice. On 21 December 1981, by order of this court, there was a stay of proceedings and time for compliance with the Bankruptcy Notice was extended to 9 February 1982.

On 5 February 1982 the second application to set aside the judgment was heard and dismissed by his Honour Judge Williams of that court. On 9 February 1982 the stay referred to above was dissolved. On 17 June 1982 a Creditor's Petition was issued alleging a debt to the petitioning creditor in the sum of $6,712.68 together with interest from the date of judgment, viz. 17 October 1979 to 9 February 1982, amounting to $1,554.03.

On 22 June 1982 and by arrangement the Petition was served at the offices of the Solicitors for the judgment debtor. On 30 July 1982 the Notice of Intention to Oppose Petition already quoted was filed.

After some further adjournment, the matter was listed for hearing for 10 November 1982; but then adjourned on the application of the judgment debtor. It was relisted to 23 February 1983, a date which was vacated on the application of the petitioning creditor. It was relisted for 12 April 1983 and part heard at the end of that day. Evidence has been tendered on behalf of the petitioning creditor. It is not disputed that the evidence, except for the said Notice and evidence adduced by the judgment debtor is sufficient to entitle the petitioning creditor to a Sequestration Order.

Reference may now be made to the Notice of Intention to Oppose the Petition quoted earlier. Counsel for the judgment creditor submitted that this is a proper case in which the judgment debtor should be allowed to go behind the judgment presently standing in favour of the petitioning creditor. The debt, he argues, the subject of the judgment, was incurred by a company of which the debtor was a director, i.e. that it was not incurred by the latter personally.

In his affidavit sworn on 13 August 1982 in support of the application, the debtor claims that he is not indebted to the petitioning creditor, that he was a director of a company called All Round Developers Pty. Limited, that this company was the original proprietor of a registered business name "Tropical Cane Centre" whose business was carried on at 378 Pacific Highway, Crows Nest, but that the said company ceased to be the proprietor on 18 August 1977. The affidavit of the said judgment debtor, so far as it was pressed after objection as being admissible evidence before me in relation to the judgment debtor's original dealing with the petitioning creditor reads as follows -
". . . . .

(iv) In relation to the company's dealings with the plaintiff I say that in or about early 1977 I saw an advertisement in the Sydney Morning Herald for a sellout of cane products by Brasalco Pty. Ltd. I telephoned the plaintiff and spoke to a person I believed was a director of the company, Iris Broese . . . . . . We arranged to meet at the premises at Rushcutters Bay and I negotiated to purchase the stock . . . .

. . . . .

(iv) (sic) In relation to the plaintiff's dealings, it is clear that as at 2nd May 1977 the date of its invoice 001088, the plaintiff was dealing with the Tropical Cane Centre of Pacific Highway, Crows Nest (the street number in the invoice is incorrect). Annexed hereto and marked "B" is a photocopy of the invoice aforesaid.

. . ."
(The transcript p.13 lines 16 and 19 as to this affidavit refers to the words "I never" where the correct reference was to the words "I informed").

The judgment debtor further, in his said affidavit, alleges that the said company paid to the plaintiff amounts in the order of some $15,000 and that -
"I say that "All Round Developers Pty. Limited" paid to the plaintiff herein an amount in the order of some $15,000 although I cannot be sure of the exact amount. Every cheque bar the last payment of $500 was paid by the company. Exhibited to me at the time of swearing this my affidavit is the company cheque book for the period of 23rd November 1977 to 30 July 1979. The cheque book is exhibited and marked "D". The cheque butts record two payments to Brosalco, the first of 7th January 1978 (cheque no. 258318) and the second on 29th September 1978 (cheque no. 258417)."

In his viva voce evidence he agreed that the cheques had overprinted on them where the payer would sign, the words "Tropical Cane Centre" there being no reference on the cheque to the name of the company "All Round Developers Pty. Limited". Further, in support of the Notice of Motion, an affidavit was sworn on 29 November 1982 and filed on 30 November 1982 by Philip Scott Thornton. So far as it was pressed by counsel for the judgment debtor, it reads as follows -
". . . .

3. . . . I refer to my further knowledge of such a state of affairs by reference to annexure 'A', as I assisted John DRAPER and others to design the business logo that appears on that document, which clearly shows a reference to the parent firm.

4. I became aware of the firm known as BROSALCO PTY. LIMITED when they advertised in Sydney newspapers for the sale of cane furniture. I was directed to attend the offices and warehouse/showroom of that firm situated at Paddington/Rushcutters Bay. I there spoke to Mr. & Mrs. BROESE, who I understood were directors of BROSALCO PTY. LIMITED. I introduced myself and gave them a business card with the business logo of The Tropical Cane Centre . . .

5. I had discussions with Mr. & Mrs. BROESE regarding the terms of purchase by my employers, The Tropical Cane Centre. I inspected the goods, did a stock take and later returned and gave this information to Mr. Draper. I am aware that Mr. & Mrs. BROESE came to the Tropical Cane Centre at CROWS NEST on at least two occasions.

. . . . .

8. I had many conversations with Mrs. BROESE regarding the delivery of the cane furniture, and payments to her company . . ."

It is not suggested that the annexure to which the affidavit refers was served on the petitioning creditor.

During the hearing I invited counsel for the judgment debtor to comment on the documentation offered in proof of the case for the petitioning creditor, i.e. apart from the matters specified in the Notice of Opposition. He told me that it had been discovered that the amount claimed as the petitioning creditor's debt was overstated. However, he did not seek any amendment of the Notice of Opposition so that it might include such a claim; nor did his client make any such assertion in his affidavit of 13 August 1982. Counsel has not offered any comment on the discrepancy between the amount asserted in the petition as being the indebtedness of the judgment debtor, viz. $6712.68, as the amount due under the judgment debt of 17 October 1979 together with interest as at 9 February 1982 of $1554.03; which sum and indebtedness was verified by the affidavit of van Groenou dated 9 June 1982 and the amount verified as being owing in the affidavit of the same deponent of 12 April 1983 tendered to satisfy the requirements of Rule 21(1)(b) of the Bankruptcy Rules. That affidavit states the amount of $6712.68 owing by John Draper, the debtor, under the judgment is still wholly due and unsatisfied, i.e. it makes no reference to the interest. It appears to me that the Rule 21(1)(b) affidavit of van Groenou failed to advert to the existence of the debt in respect of the interest. In this litigation I consider that no one has been or could be misled. The Rule 21(1)(b) affidavit of 12 April 1983 was filed long after the Notice of Opposition. The opposition was to the Petition. No objection to the Rule 21(1)(b) affidavit was made; no cross examination on these figures was put to van Groenou; no substantial or any injustice could have been caused by the difference in figures which therefore may be disregarded.

As I have said earlier, the judgment debtor has sought to go behind the judgment to show that the debt was owed not by him personally but by a company All Round Developers Pty. Limited (the company). The evidence as to ownership and disposal of the business name, Tropical Cane Centre, is unchallenged. I accept it.

The list of payments made to the judgment creditor, however, is annexed to the affidavit of 30 August 1982 of van Groenou which has not been questioned and is consistent with there being five cheques from "Tropical Cane Centre", five cheques from the company, one cheque from J.A. Draper and, as mentioned above, one from "J.A. Draper Carunya Properties". The first cheque paid to the petitioning creditor apparently was drawn by the company. I agree with the comment of Lockhart J. in Simon v. O'Gorman 27 ALR 619 at p.637 that it is not uncommon in business for payments to be made by persons other than those with whom the relevant contract has been made.

The affidavit of the judgment debtor of 13 August 1982 and affidavits filed on his behalf by Philip Scott Thornton and Jacqueline Monique Quemeneur do not include any reference to written communication with or conversation by the judgment debtor with executives of the petitioning creditor that the company was the purchaser of the cane products; though he asserted in it that it was clear as at 2 May 1977, the date of invoice No. 001088, the petitioning creditor was dealing with the Tropical Cane Centre of Pacific Highway, Crows Nest, and that statements were issued in the style of the Tropical Cane Centre. The affidavit of van Groenou is consistent with this; in that she said she asked the judgment debtor, apparently at their first meeting, to whom the goods were to be invoiced; and he replied "Tropical Cane Centre". She stated that at no time did the judgment debtor mention that he was acting on behalf of or representing any other person or company. She denied that any invoices or other documents were ever received by the petitioning creditor from the company; nor was its existence made known to her by the judgment debtor. This last statement could be argued to be somewhat inconsistent with there having been received by the petitioning creditor as the first payment for the cane products a cheque from the company. I am satisfied she did not notice the signature on the cheque. She stated that no notification had ever been received from the company indicating any liability on that company to the petitioning creditor. Copies of letters dated 21 November 1977 and 31 May 1978 said to have been sent to the judgment debtor were annexed to the affidavit. They are in the nature of letters of demand. They do not refer to the company. Copies of three invoices dated 1 April 1977, 1 July 1978 and 1 March 1979 from the petitioning creditor in respect of goods sold were annexed to the affidavit of the judgment debtor dated 13 August 1982. They are addressed to -

1. Tropical Cane Centre, 278 Pacific Highway, Crows Nest.

2. The Tropical Cane Centre Mr. John Draper, 155 Strathallan Avenue Northbridge

3. As in 2 above.

On the last of these there is an admonitory note handwritten by van Groenou addressed to the judgment debtor personally. They were written before proceedings commenced.

Yolanda Barrington Davies, in an affidavit filed on behalf of the petitioning creditor, denied ever hearing the judgment debtor say that he was purchasing as agent for or on behalf of the company. She said in evidence - and I see no reason to disbelieve her - that it did not occur to her that the name The Tropical Cane Centre may have been a business name for the company.

Already I have referred to the period of time between service of the Statement of Liquidated Claim, or the judgment debtor's awareness of it, and the signing of judgment, no defence having been filed. There followed the unsuccessful attempt at execution.

It is well settled that this Court may, in a proper case, "go behind" a judgment, e.g. in a case where a petition is founded on a Bankruptcy Notice which relies upon an unsatisfied judgment. Perhaps, in some instances, it will more readily do so where the judgment was by default - see, e.g. Corney v. Brien (1951) 84 C.L.R. 343 (Corney) at p.352; though in that case there was no consideration for the alleged debt. Fullagar J., in the same case, at p.357 quoted the words of Lord Esher M.R. in In re Hawkins; Ex parte Troup (1895) 1 Q.B. 404 -
"I myself should say that the question for the court is whether there is, or is not, a reasonable doubt that the judgment has been obtained by one side or the other fairly."
Fullagar J. was referring to a case of a judgment obtained by compromise. His Honour went on (ibid) to say that where the judgment is by default "it appears that the court will always "go behind" the judgment if there is what it regards as a bona fide allegation that no real debt "lay behind" the judgment." He added (p.358) -
"The question whether the judgment is to be reopened or "gone behind" at all will, of course, often involve some preliminary investigation of the merits of the attack on the judgment."

In Wren v. Mahoney (1971) 126 C.L.R. 212 (Wren) at p.224 Barwick C.J. said at pp.224-5 -
"It is not the law, in my opinion, that whether in any case the Court of Bankruptcy will consider whether there is satisfactory proof of the petitioning creditor's debt is a mere matter of its own discretion. Nothing in Corney v. Brien (1951) 84 C.L.R. 343 lends support for such a view. Rather the emphasis is upon the paramount need to have satisfactory proof of the petitioning creditor's debt. The Court's discretion in my opinion is a discretion to accept the judgment as satisfactory proof of that debt. That discretion is not well exercised where substantial reasons are given for questioning whether behind that judgment there was in truth and reality a debt due to the petitioner."
Authorities which bear upon the topic "going behind the judgment" are collected in Simon v. O'Gorman (1979-1980) 27 ALR 619.

The assertion is that the debt is owed by another entity (the company) which has not, I note, offered to pay it and I understand is in financial difficulties. The judgment debtor is a director of that company.

I consider van Groenou was a careful and truthful witness, whose version of the initial arrangements I accept. On that evidence there was no mention to her by the judgment creditor of the company at all. Van Groenou and the petitioning creditor, through her, were entitled to and did understand it was dealing with the judgment debtor or the judgment debtor trading as The Tropical Cane Centre. That it was so dealing is supported by documents. The content of her letters to the judgment debtor earlier mentioned, sending the invoices dated 1 April 1977 and the accounts rendered of July 1978 and March 1979 (with hand written comments) are consistent with regarding John Draper as the person who owed money to the petitioning creditor and quite inconsistent with there being any relevant involvement of the company. If it could be said that the judgment debtor was an agent contracting on behalf of an undisclosed principal, viz. the company, he is still liable personally. See generally Law of Contract Cheshire & Fifoot 4th Australian Edition para. 2058, 2063. This matter is not within the class of cases referred to by Fullagar J. in Corney at p.357 where there is a "bona fide allegation that no real debt lay behind" the judgment. There has been more than merely a "preliminary investigation of the merits of the attack on the judgment" (ibid p.357); and that investigation supports the case for the petitioning creditor that there was a debt and that it was properly due to it. I come to this view without the necessity to regard the judgment itself as prima facie evidence of the debt, a phrase quoted in Corney at p.358, or as some satisfactory proof of that debt as suggested in Wren at p.224 by Barwick C.J. In my opinion the court should not go behind the judgment. If it did, on the evidence before me, the petitioning creditor has satisfied me that it was entitled to judgment against the judgment debtor.

I find there was no fraudulent conduct by van Groenou or anyone acting on behalf of the petitioning creditor. On the material before me such a charge is without justification.

At the end of this hearing and after more than half his closing submissions had been made, counsel for the judgment debtor pointed out that the Petition issued on 17 June 1982 had lapsed. He referred to s.52(4) of the Bankruptcy Act 1966 (the Act). That section reads -
"A creditor's petition lapses at the expiration of -

(a) subject to paragraph (b), the period of 12 months commencing on the date of presentation of the petition; or

(b) if the Court makes an order under sub-section (5) in relation to the petition - the period fixed by the order,

unless, before the expiration of whichever of those periods is applicable, a sequestration order is made on the petition or the petition is dismissed or withdrawn."
Sub-s. 5 is also relevant and reads -
"The Court may, at any time before the expiration of the period of 12 months commencing on the date of presentation of a creditor's petition, if it considers it just and equitable to do so, upon such terms and conditions as it thinks fit, order that the period at the expiration of which the petition will lapse be such period, being a period exceeding 12 months and not exceeding 24 months, commencing on the date of presentation of the petition as is specified in the order."

Counsel for the petitioning creditor sought to have the period at the expiration of which the petition would lapse extended so as to enable a Sequestration Order to be made if the Notice of Opposition were not upheld. It was submitted in reply that the court could only extend the life of the petition if application is made "before the expiration of the period of 12 months commencing on the date of presentation of the petition.

The petition was presented on 17 June 1982, or perhaps on 9 June 1982. Reference was made to s.33(1)(c) of the Act. That sub-section reads -

The Court may -

. . . .

(c) extend before its expiration or, if this Act does not expressly provide to the contrary, after its expiration, any time limited by this Act, or any time fixed by the Court or the Registrar under this Act (other than the time fixed for compliance with the requirements of a bankruptcy notice), for doing an act or thing or abridge any such time."
The words underlined were added by Act No. 12 of 1980. The same Act introduced s.41(6A), (6B) and (6C) which makes particular provision for time for compliance with Bankruptcy Notice. No authority referring to these sections or otherwise has been drawn to my attention. In my opinion that the legislature referred to a Bankruptcy Notice in s.33(1)(c) makes it easier to conclude that the life of the petition, being the process which relies on a Bankruptcy Notice in most applications for sequestration, was not to be so tightly controlled. In s.52(5) where provision is made for the life and extension thereof of a petition, the word "may" imports a discretion, referable, I suggest, to the wisdom of extending the life of the petition and not permissively, as it were, to doing so within the period of 12 months. If it were otherwise I would have expected the comma to be after "Court", not "may". "Expressly" in s.33(1)(c) imports the meaning of clearly or unequivocally. For example, that sub paragraph itself expressly provides that the time for compliance with the requirements of a bankruptcy notice may not be extended after its expiration, no doubt because of the detailed provision for such extension in s.41 (cf. James v. Abrahams 34 ALR at 662 per Deane (as he then was) and Lockhart JJ.). In my view, s.52(5) does not expressly provide that the court may not after its expiration, extend (the relevant) time at the expiration of which the period lapses. I am unaware of any authority which precisely considers this problem. In The Metropolitan District Railway Company v. Sharpe H.L. 50 L.J.N.S. 14 support, I suggest, is found for the view I favour. In that case there was reference to a private Act of Parliament which provided a special tribunal to arbitrate any claims for compensation for injury to land by the works of a railway company; but no provision was made for costs. The same Act incorporated the Lands Clauses Consolidation Act, 1845 "except where expressly varied" by the special Act. Following an arbitration a plaintiff applied for costs relying on the power to award costs given in s.34 of the 1845 Act. It was held that the provisions of s.34 were not "expressly varied" by the section of the special Act which provided a different tribunal of arbitration; but that these provisions applied to arbitration under the section of the special Act. Lord Blackburn said at p.21 -
"I do not think that because the words used in this Act are "expressly varied" it is essentially necessary that there should be express words saying, This particular section or provision shall not apply. I do not think that express words are required for that purpose, but it does require something that indicates an express intention that they shall not apply as far as applicable to the present case. A mere variation from the ordinary type and form would not be sufficient to prevent the clause applying. A variation shewing that the provision was inapplicable would have the same effect as if it were expressly varied."
See also Paton's Trustees - Petitioners 1953 S.L.T. 276 at p.277. Lord Guthrie, referring to the Trusts (Scotland) Act 1921 providing that the court may authorise advances to beneficiaries where e.g. "not expressly prohibited by the trust deed", said -
"The words "expressly prohibited" in the section mean that the trust deed must contain a clear and specific provision that advances . . . . shall not be made to a . . . . beneficiary."
As to the meaning of "extend" see per Fullagar J. in Esso Research and Engineering Company v. Commissioner of Patents (1960) 102 C.L.R. 347 at p.351 or Streimer v. Tamas 37 ALR 211 (Streimer) at p.222.

In my opinion, in order that the contention advanced on behalf of the judgment debtor should succeed, there would have to be in s.52(4) or s.52(5) or elsewhere something that indicates expressly that the words of s.33(1)(c) do not apply to sub-sections (4) and (5). There is no such indication to be found in the sub-sections.

It may also be that I have power to make the order I propose by reference to inherent power. See per Sheppard J. in Streimer at p.223. The "slip rule", as referred to in his Honour's judgment in that case may also apply, in the sense that the court proceeded up to the end of the hearing upon the basis that the petition had not lapsed. Had the imminence of this been drawn to attention at an appropriate time, I would have extended its life pursuant to s.52(5) and at least to such time as this judgment was given.

In this case that the petition should lapse would be entirely fortuitous, i.e. because of the passage of time during adjournment. I am entirely confident that this was something which never occurred to either counsel or, for that matter, the presiding judge. Orders to extend the life of a petition as a matter of practice are constantly made, and ought to be made on the facts of this case.

I am satisfied -

(a) that the judgment debtor committed the act of bankruptcy alleged in the petition;

(b) of the other matters of which s.52(1) of the Act requires proof.

I make the following orders -

1. The period of the expiration of which the petition will lapse will be a period of 24 months commencing on 17 June 1982.

2. A Sequestration Order against the estate of the judgment debtor.

3. The judgment debtor is to pay the petitioning creditor's costs of and incidental to the petition and the opposition thereto including reserved costs.

I note that Laurence Brian Hunter, a registered trustee, has consented to act as trustee of the estate of the debtor.

I direct the petitioning creditor, pursuant to R.124(2), to deliver a draft of these orders to the Registrar within seven days therefrom.