Re Ling, Noel Ex Parte Commonwealth of Australia Enrobook Pty Ltd

[1996] FCA 375

CATCHWORDS

Bankruptcy - application for adjournment of creditors' petitions

Estoppel - Anshun estoppel - tests applicable

Bryant v Commonwealth Bank of Australia (1994) 51 FCR 529 at 536, 537 applied

Commonwealth v Ling (1993) 44 FCR 397 referred

RE: NOEL LING;   EX PARTE: COMMONWEALTH OF AUSTRALIA
No. NP 1571 of 1995

RE: NOEL LING;   EX PARTE: ENROBOOK PTY LIMITED
No. NP 168 of 1996

CORAM:Lehane J

PLACE:Sydney

DATE:14 May `1996

IN THE FEDERAL COURT OF AUSTRALIA  )
GENERAL DIVISION  )
BANKRUPTCY DISTRICT OF NEW SOUTH WALES           )        Nos. NP 1571 of 1995
  NP 168 of  1996
Matter No. NP 1571 of 1995

RE:NOEL LING

Debtor

EX PARTE:COMMONWEALTH OF AUSTRALIA

Creditor
Matter No. NP 168 of 1996

RE:NOEL LING

Debtor

EX PARTE:ENROBOOK PTY LIMITED

Creditor

CORAM:Lehane J

PLACE:Sydney

DATE:14 May 1996

MINUTE OF ORDERS

THE COURT ORDERS:

1. THAT the renewed application for adjournment is dismissed.

NOTE:           Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA  )
GENERAL DIVISION  )
BANKRUPTCY DISTRICT OF NEW SOUTH WALES           )        Nos. NP 1571 of 1995
  NP 168 of  1996
Matter No. NP 1571 of 1995

RE:NOEL LING

Debtor

EX PARTE:COMMONWEALTH OF AUSTRALIA

Creditor
Matter No. NP 168 of 1996

RE:NOEL LING

Debtor

EX PARTE:ENROBOOK PTY LIMITED

Creditor

CORAM:Lehane J

PLACE:Sydney

DATE:14 May 1996

EXTEMPORE REASONS FOR JUDGMENT

LEHANE J:  Yesterday I dismissed applications by the debtor for the adjournment of two creditors' petitions against him, one of the Commonwealth, the other of Enrobook Pty Limited.

This morning Mr Aldridge of counsel, appearing for the debtor, renewed his applications.  He made submissions, additional to those made yesterday, by which he sought to persuade me to reconsider my decision.

I think the only point which has emerged from Mr Aldridge's additional submissions, which may be thought to take matters further than his earlier submissions took them,
arises from a reference to the judgment of Einfeld J at first instance in Bryant v Commonwealth Bank of Australia (1994) 51 FCR 529. The passage to which Mr Aldridge referred me occurs particularly at pages 536 and 537.

The suggestion is that the appeal from my judgment dismissing Mr Ling's claim against the Commonwealth may succeed on two bases arising out of that passage.  One is a statement of principle to the effect that the cases in which an Anshun estoppel will apply to a cross claim will be exceptional cases only.  The second is the particular basis on which his Honour held an Anshun estoppel arose in Bryant's case itself.

The second is perhaps the more immediately important because it suggests in turn the basis on which it is said that whereas the circumstances of Bryant might be regarded as exceptional, the circumstances of the present case might not, at least to the same extent, be so regarded.  The particular circumstances referred to are that in Bryant it was held that the cross-claim arose not just from the same general circumstances of the relationship between the parties but from, or at least largely from, obligations arising out of the same contractual relationship between them.

While I understand the submission that has been made, it seems to me, first, that the test was more widely stated by the Full Court and, secondly, that it is still very difficult to see a sufficiently significant distinction between the facts of Bryant and the circumstances here.  It is perhaps unnecessary to go over it in detail again; in my view there is in reality very little relevant distinction between the connection found to exist in Bryant's case and
the connection here, which I think can properly be described as an exceptionally intimate one, between the circumstances giving rise to the contractual claim decided in Commonwealth v Ling (1993) 44 FCR 397 and those out of which arose the claim of Mr Ling which I have dismissed.

I think therefore that I should refuse the renewed application for an adjournment and proceed to hear the petition.

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.

Associate:

Dated:  17 May 1996

Heard:  14 May 1996

Place:  Sydney

Decision:  14 May 1996

Appearances:  Mr M R Aldridge of counsel instructed by Gadens Ridgeway appeared for the debtor in both proceedings NP 1571 of 1995 and NP 168 of 1996.

Messrs P M Biscoe QC and F Kunc of counsel instructed by the Australian Government Solicitor appeared for the petitioning creditor in proceedings NP 1571 of 1995.

Ms S Nash appeared for the petitioning creditor in proceedings NP 168 of 1996 and for a supporting creditor in proceedings NP 1571 of 1996.