Re Patullo, D.W. & I.R.T v Ex parte Knight, D.W

[1989] FCA 376

JUDGMENT Uo ,.... ,,....-/........ .,,,.v 376

IN THE FEDERAL COURT OF AUSTRALIA	1
GENERAL DIVISION	) QLD P237 of 1989

- BANKRUPTCY DISTRICT OF THE SOUTHERN QLD E481 of 1989

DISTRICT OF THE STATE OF QUEENSLAND )

RE:	DESMOND WILLIAM PATULLO and
INES RENATATERESA  PAT~~LLO
EX PARTE:	DESMOND WILLIAM KNIGHT as Trustee of the
Estates O ~ ~ O N D  WILLIAM KNIGHT,
WLLIAM  PATULLO and INES R E N A ~ R E S A
PATULLO (Bankrupts)

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J .
DATE OF ORDER:	20 JULY 1989
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    the parties in action no. 51 of 1985 in the Supreme Court of Queensland take no further step in those proceedings, other than to ask that they be adjourned, until further order;

2.   the plaintiff in those proceedings be notified forthwith by the trustee of the making of this order and the terms of it;

3.    the trustee supply that plaintiff forthwith with a copy of this order and the reasons for it;

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

4.    the said plaintiff, AMEV-UDC Finance Limited, may make application on notice to Messrs Grasso Searles and Romano and to Messrs Hewlett and Co. for discharge of this order at any time;

5 .    costs be reserved.

. -

IN THE FEDERAL COURT OF AUSTRALIA	1
GENERAL DIVISION	1 QLD P237 of 1989
BANKRUPTCY DISTRICT OF THE SOUTHERN	) QLD E481 of 1989
DISTRICT OF THE STATE OF QUEENSLAND	)

RE:	DESMOND WILLIAM PATULLO and INES RENATA TERESA PATULLO
EX PARTE:	DESMOND WILLIAM KNIGHT as Trustee of the m a t e s of DESMOND WILLIAM KNIGHT,
WILLIAM PATULLO and INES RENATA TERESA --
PATULLO (Bankrupts)

PINCUS J. 20 JULY 1989

EX TEMPORE REASONS FOR JUDGMENT

This is an application on behalf of D.W. Knight, the trustee of the estates of Mr and Mrs Patullo, for directions. The sequestration order was made on 2 June 1989 and on 14 June, an appeal having been filed, I made an order, in effect, staying the sequestration order.

Unknown to both the trustee and the Court, there was pending on that day an action in the Supreme Court of Queensland,

No. 51 of 1985, in which AMEV-UDC Finance Limited is plaintiff and

the first bankrupt defendant. On that very day, the trustee received from the plaintiff's solicitors a letter calling on him to elect under s.60 of the Bankruptcy Act 1966 as to whether he would proceed. The appeal to the Full Court is to be heard next Wednesday, 26 July and the trustee is unsure what to do. He does

not wish to involve himself in the Supreme Court case, for obvious reasons, and indeed cannot do so unless the stay is lifted. The plaintiff in the Supreme Court case has applied to strike out a counter-claim, in this interval between the grant of the stay to hold this status quo pending the hearing of the appeal and the disposition of that appeal.

It is obviously very inconvenient that decisions should have to be made at this stage about the Supreme Court case. The choice is between doing nothing and staying the Supreme Court proceedings. The power to do so does not flow from s.60 but seems to be contained in s.30(l)(b) of the Act. Although staying the Supreme Court proceedings seems the obvious course, the plaintiff in that proceeding has not been heard or served and the case is coming before the Supreme Court again tomorrow, that Court having adjourned the plaintiff's application to strike out the counter-claim, in order to allow the trustee to take an appropriate step.

The order I propose to make is intended to last at least

until the Full Court has dealt with the matter, but provision will

before the Court to discharge the order. I should mention that be made to enable the plaintiff in the Supreme Court to come the trial of the Supreme Court proceedings is listed for hearing
in Mackay on Monday next.

It will be ordered that:

1. the parties in action no. 51 of 1985 in the Supreme Court of Queensland take no further step in those prbceedings, other than to ask that they be adjourned, until further order;

2. the plaintiff in those proceedings be notified forthwith by the trustee of the making of this order and the terms of it;

3.    the trustee supply that plaintiff forthwith with a copy of this order and the reasons for it;

4.   the said plaintiff, AMEV-UDC Finance Limited, may make application on notice to Messrs Grasso Searles and Romano and to Messrs Hewlett and Co. for discharge of this order at any time:

5 . costs be reserved. 1

i :c:lify	l l ~ a +	tlii; and the I d o prcccdlng
r-'1:5 ~1.2	.I I:LI?	CC?) of the reasons for

111.13~1:1t li-1re1n of His tionour

I v l r Ju;llcc P~ncus /$l; Associate