Re Ling, Noel Ex Parte Enrobook Pty Ltd

[1996] FCA 1190

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA  )
GENERAL DIVISION  )
BANKRUPTCY DISTRICT OF NEW SOUTH WALES            )            No NP 168 of  1996

RE:NOEL LING

Debtor

EX PARTE:ENROBOOK PTY LIMITED

Creditor

CORAM:Lehane J

PLACE:Sydney

DATE:18 December 1996

EXTEMPORE REASONS FOR JUDGMENT

LEHANE J:  In this matter I have concluded (for reasons given in my published reasons for judgment) that the debtor's grounds of opposition fail.  Accordingly the orders of the court are that a sequestration order be made against the estate of the debtor and that the petitioning creditor's costs of and incidental to the petition, including reserved costs, be taxed and paid in accordance with the Bankruptcy Act 1966. The debtor seeks a stay under subs 52(3) of the Act.

In my view it is appropriate to grant a stay for the period permitted by the subsection, that is, a period of 21 days.  The authorities suggest that in circumstances such as these a stay is quite readily granted, at least in the absence of evidence of prejudice, and
particularly where there appear to be reasonable grounds for an appeal against the sequestration order.

In this case, while I have come to the clear conclusion that the existence of the Mareva injunction does not operate as a stay of execution of judgments against the debtor, in reaching that conclusion I distinguished two decisions of the Full Court of this court: in those cases observations were made by the members of the court which suggest that in some circumstances an order freezing or, perhaps restraining dealings with, property might operate for that purpose in a manner similar to the way in which the appointment by the court of a receiver or other trustee under s 50 of the Bankruptcy Act has been held to operate.

In those circumstances I order that proceedings under the sequestration order which I have made be stayed for a period of 21 days from today.  I think in the circumstances it is perhaps inappropriate  to impose conditions though, for what it is worth, I express the view that it might well be appropriate to do so if there is an application for a further stay pending an appeal.  That, of course, will be a matter for the judge dealing with any such application.

The costs referred to in my earlier order are to be taken to include the petitioning creditor's costs of the stay application.

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:  18 December 1996

Heard:  18 December 1996

Place:  Sydney

Decision:  18 December 1996

Appearances:  Ms S S Nash of Sally Nash & Co appeared for the petitioning creditor.

Mr F Kunc of counsel instructed by the Australian Government Solicitor appeared for the supporting creditor.

Mr M R Aldridge of counsel instructed by Gadens ridgeway appeared for the debtor.