Re Jackson, G.N. & anor

[1992] FCA 500

30 J 92

JUDGMENT NO. .....-.....- N. W -

IN THE FEDERAL COURT OF AUSTWIA	)	NO. QX 39 of 1991
@NE= DIVISION	1
pANKRUPTCY DISTRICT OF	1
THE STATE OF OUEENSLAND	)

RE :	GRAHAM NICHOLAS JACKSON and
JILL MARION JACKSON

(Debtors )

EX PARTE: ROBERT THOMAS ADCOCK

(Applicant)

MINUTES OF ORDER

JUDGE MAKING ORDER:	Drummond J
DATE OF ORDER:	6 July, 1992
WHERE MADE:	Brisbane
THE COURT DECLARES THAT:

1.        The deed of arrangement accepted by a special resolution of a meeting of creditors of Graham Nicholas Jackson and Jill Marion Jackson held on 9

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

April, 1991 under Part X of the Bankru~tcv Act 1966

m is not void on the ground specified in

paragraph A.l(c) of the application.

THE COURT ORDERS THAT:

1.        The costs of the applicant of and incidental to the application be paid out of the fund presently in the hands of the applicant.

-

JN THE FEDERAL COURT OF AUSTRALIA	1	No. QX 39 of 1991
GENERAt DIVISION	)
WKRUPTCY DISTRICT OF	1
THE STATE OF QUEENSLAND	)

RE :	ERRHAM NICHOLAS JACKSON and
JJLL MARION JACKSON

(Debtors)

EX PARTE: ROBERT THOMAS ADCOCK

(Applicant)

A

CORAM: Drummond J

PLACE :  Brisbane

m: 6 July, 1992

EX TEMPORE REASONS FOR JUDGMENT

Section 194(2A) of the BankruDtcv Act 1966 ICth)
requires the notice calling the meeting at which there is to

be a resolution for the deed to be accepted or entered into,

delivered under S. 188(2)(c)(ii). That last provision	to be accompanied by the debtors statements required to be
requires the debtors to file a statement of what their intention is. It is that statement of intention that is the cause of the problem in this case.

Section 194(4) says that:

"If sub-section ... (2A) ... is contravened

(which sub-section as I have already held was contravened because the statement of intention did not indicate the true intention of the debtors)

the meeting is incompetent to act for the purposes of this Part unless the Court, on application of a creditor or of the controlling trustee or solicitor who called the meeting, declares that the contravention is to be disregarded."

The power under S. 222(2) is cumulative upon the power under S. 194(4). In other words, even though the subject of the deficiency is a meeting that is incompetent to act, the fact that that contravention can be overcome by a declaration under S. 194(4) does not, I think, prevent the general power under S. 222(2) being exercised.

In the circumstances, it having been demonstrated by the affidavit material before me that all of the creditors, save for the Gold Coast City Council, who did not attend the meeting at which the resolution requiring the debtors to enter into the deeds was passed, understood the notices of intention

between them pay creditors a total dividend of 5 cents in the	received from each of the debtors to state their intention to
dollar, the case is one in which I am prepared to exercise my powers under S. 222(2).
So far as the Gold Coast City Council is concerned, the position is that at the time the meeting was called, the Council was a creditor in respect of arrears of rates owing by the debtors. It, in fact, had a statutory charge securing payment of those rates which charge and debt was satisfied, according to Mr. Adcockps most recent affidavit, out of the proceeds of sale of some property owned by the debtors.
In view of the reasons I have already given, I am not prepared to make the declaration sought in either of sub- paragraphs A.l (a) and (b) of the application. However, given that S. 222(3) directs the Court to not make an order declaring a deed to be void on the ground that it does not comply with the requirements of this Part i.e. , Part X) if the deed complies substantially with those requirements, I think I am entitled, and on the material before me justified, in making an order under S. 222(2) declaring that the deed is not void on the ground specified in paragraph A. 1 (c) of the application since the evidence satisfies me that the deed can be said to comply substantially with the requirements of Part
X of the Bankru~tcv Act.
I certify that this and the preceding
two pages are a true copy of the
reasons for judgment herein of the
Honourable Mr. Justice Drummond. I n
Associate: [ i H V
Date:  6 July, 1992