Re Logan, G. v Ex Parte Fergus Constructions Pty Ltd

[1991] FCA 778

NOT FOR DISTRIBUTION

3UDGMENT No. ..2 ?!!z...F.?L

JN TEE FEDERAL COURT	1 1
QF AUSTRALIA	1
) No. VB 3412 of 1991
VICTORIA D	ISTRICT REGISTRX )

1

GENERAL DIVISION	)
BETWEEN :

Ex Parte:  FERGUS CONSTRUCTIONS PTP L1

Heerey J. Melbourne 27 November 1991 ;L):~xL COURT OF

AUSTRALIA VUINCIPAL

REGISTRY

EX TEMPORE REASONS FOR JUDQ4ENT

I propose to exercise my discretion under S. 37(1) to rescind the sequestration order which was made on 12 November 1991, that order not yet having been signed. A fundamental consideration is, as the High Court put it in Tavlor v Tavlor (1979) 25 ALR 418 at 421:

.... common justice demands that (a party) should be allowed to

preeent his cane.

dollar, but of course it is a sine qua non for a Part X	arrangement that the debtor is insolvent. 1t was not
suggested that given appropriate circumstances the Court may not adjourn a creditors' petition to enable the approval of creditors to be sought. I rescind the sequestration order. I order that the debtor pay the creditor's costs of this application.

"The case" in the present proceeding relevantly is that the Bankruptcy Court will be asked to adjourn the petition so that the debtor may seek the approval of his creditors to an arrangement under Part X. The merits of that application are essentially one for the Court to decide on a hearing at which the debtor has an opportunity to be heard. Whether or not he would succeed is not for me to say.

It is unarguable that the debtor is insolvent as it appears from his affidavit that the best that he could propose in a Part X arrangement would be a return of 15 cents in the

I certify that this and the

preceding page are a true copy of the Reasons for Judgment of the Honourable

Mr Justice Heerey

ADDearances

Counsel for the Debtor:	Dr K P Hanscombe
Solicitors for the Debtor:	Allan R Walker
Counsel for the
Petitioning Creditor:	Mr A Ellis
Solicitors for the
Petitioning Creditor:	Abbot Tout Russell Kennedy