Re Fuller, M.J. Ex parte Claremont Petroleum Nl

[1993] FCA 354

)' A C[+ r ~ 3

JUDGMENT No. .... 2.2 ........ . I ...,........

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION

RE :

- MICHAEL JOHN FULLER
Debtor

EX PARTE:  CLAREMONT PETROLEUM NL
petitioning Creditor

HILL J

ADELAIDE

20 MAY 1993

REASONS FOR JUDGMENT

After I had pronounced a sequestration order against his estate Mr Fuller, through his counsel, applied under s.52(3) of the Bankruptcv Act 1966 ("the Act") for a stay of proceedings under that order for a perlod of 7 days to enable him to consider his position. He offered, if required, an undertaking that he would not in that time deal with his assets or properties, other than for the payment of ordinary and proper living expenses.

determined.

The application for a stay was opposed by counsel for the petitioning creditor who submitted that no real ground had been made out and that the position was analogous to seeking a stay in an ordinary civil proceeding against a ludgment where the fact that the Court has entered a judgment is a matter to be weighed in the balance when a stay is

It was pointed out that the bankrupt had not opposed the petition in the sense of disputing any of the matters required to be proved by the petitioning creditor under s.52(2) of the Act and that the only opposition to the petitlon lay in the application for adlournment, with whlch I have dealt in the judgment.

Counsel for the petitioning creditor pointed out that the ludgment being a matter of practice and procedure presents great difficulty for Mr Fuller in the event of an appeal because, in accordance with well-established principle, the appeal would not succeed unless it is shown there has been an error or principle vitiating the judgment along the

principles referred to in the well-known case of House v The

Kins (1936) 55 CLR 499.

I am conscious of the fact that it is possible to see the events of the last few months involving particularly

the calling of the second meeting as an attempt by Mr Fuller

to delay the obtaining by the petitioning creditor of a

sequestration order. Prlma facie, the petitioning creditor is entitled to that order. It is not in dispute that it is owed the money in question and certainly not in dispute that Mr Fuller has committed the act of bankruptcy referred to in the petitlon.

As I said in the judgment delivered earlier (Re Fuller: Ex ~arte Claremont Petroleum, unreported, 20 May 1993), the petitioning creditor was entitled, prlma facie, to the order and that prima facle position had not been altered. In the meantime, to the contrary, the petitioning creditor having proved all of the matters required to be proved under s.52(2) was entitled to a sequestration order to be effective forthwith. In the circumstances, I see no reason why, and certainly the bankrupt has not shown any reason why, the stay should be granted and, accordingly, I would refuse it.

I certify that this and the

preceding three (3) pages
are a true copy of the Reasons
for Judgment herein of his Honour

Mr Justice Hill.

Associate: I . C i ~ y i

Counsel and Solicitors	M R Coates instructed by
for Debtor:	Floreani Coates & CO

Counsel and Solicitors R Whitington instructed by

for Petitioning Creditor:	Piper Alderman
Date of Hearing:	20 May 1993