Re Ginnane, A Ex parte Diners Club Ltd - [1993] FCA 707

JUDGMENT No. ........ ".._.... ,,, ,,,,,,, 7 1 4 3

- - . .

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY NO. VB 2384 of 1993
)

GENERAL DIVISION )
B E T W E E N :

Re: ANTHONY GINNANE

A Debtor

Ex parte: DINER'S CLUB LIHITED

petitioning Creditor

JUDGE : Heerey J
DATE : 10 September 1993
PLACE : Melbourne

FEDERAL COURT OF
AUSTRALIA PRINCIPAL

REASONS FOR JUDGMENT REGISTRY

There was a sequestration order made against the debtor by Olney J on 30 August 1993. His Honour granted a 14 day stay. Under s.52(3) of the Bankruptcy Act 1966 (Cth) the court can grant a stay of up to 21 days.
However, the debtor on 9 September filed a Notice of Appeal against the sequestration order and now seeks a stay pending the hearing and determination of that appeal. It was accepted that I have a jurisdiction to order a stay under 0.52 r.17 of the Federal Court Rules, notwithstanding the terms of s.52(3):
purpose of s.43(l)(b)(i) of the Bankruptcy Act that at the
Evans v Heather Thiedeke Group Pty Limited (1990) 95 ALR 424 at 425.
The issue which was contested before his Honour and which will
be the subject of appeal is his Honour's finding for the
time when the act of bankruptcy was committed the debtor was "personally present or ordinarily resident in Australia". In Evans, Pincus J expressed the view that the decision in Ahearn
v Deputy Commissioner of Taxation (Queensland) (1987) 76 ALR
137
"... perhaps tends to support the view that where
there is a bond fide appeal challenging the existence of a debt, a stay of the sequestration order should fairly readily be granted."

The issue here is of course not the existence of the debt but another statutory pre-condition to the making of a sequestration order and clearly the same principle ought to apply
There was an attack made on the grounds in the notice of appeal which were said to be not of any substance. There was however no attempt by counsel for the respondent to deal with the notice of appeal in the context of Olney J's judgment.

All I can say is that the notice of appeal does specify certain evidentiary grounds on which it will be contended that

his Honour erred. The requirement of being ordinarily resident in Australia raises questions of mixed fact and law. It is not a discretionary decision in itself and as such is open to the ordinary processes of appeal by way of re-hearing, in which the appeal court can draw inferences of fact with equal facility to the trial judge: Warren v Coombes (1979) 142 CLR 531.

I do not think I am in any position to make any predictions one way or the others as to the prospects of success of the appeal. As to whether it is bona fide in the sense that it is genuinely made for the purpose of challenging the sequestration…

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.

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Details

Case: [1993] FCA 707
Decision Date: 10 Sep 1993

CaseChat Overview and Summary

The case of Re Ginnane, A Ex parte Diners Club Ltd involved Anthony Ginnane, the debtor, and Diners Club Limited, the petitioning creditor. The debtor had been subject to a sequestration order, which was subsequently stayed by Olney J for a period of 14 days. Following this, Ginnane filed a Notice of Appeal against the sequestration order and sought a stay pending the hearing and determination of that appeal. The Federal Court of Australia, under Heerey J, was tasked with determining whether the stay should be granted.

The central legal issue that the court had to decide was whether the stay should be granted pending the appeal against the sequestration order. This involved assessing the merits of the appeal and the potential prejudice that the debtor might suffer if the stay was not granted. The court also had to consider whether the appeal was bona fide and not made for any collateral purpose.

In its judgment, the court held that it had the jurisdiction to grant a stay under the relevant Federal Court Rules, even though the Bankruptcy Act provided for a shorter period. The court acknowledged that a stay could be granted where there was a genuine appeal challenging the conditions of the sequestration order. The court noted that the notice of appeal contained certain evidentiary grounds, which suggested that the appeal was bona fide. Additionally, the court found that there was no particular ground of prejudice advanced by the creditor that would warrant denying the stay. Given these considerations, the court concluded that it was appropriate to grant the stay.

The court ordered that the proceedings under the sequestration order be stayed until the appeal was heard and determined. It also ruled that the costs of the application be costs in the appeal. This decision ensures that the debtor can challenge the sequestration order without immediate prejudice while the appeal is being heard.

Orders