Re Sutherland-Cropper - [1985] FCA 324

Re: JONATHON VICTOR SUTHERLAND-CROPPER
No. W233 of 1984
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF NEW SOUTH
WALES AND THE AUSTRALIAN CAPITAL TERRITORY
Beaumont J.

CATCHWORDS

Bankruptcy - stay of legal proceedings - Bankruptcy Act, 1966, s.60(1) - bankrupt convicted of obtaining property by false pretences - sentence deferred on entry into recognizance conditioned on payment of compensation - called up for sentence on breach by non-payment - whether process "in respect of non-payment of a provable debt" or "in consequence of his ... failure to comply with an order ... for (its) payment".

Words and Phrases - "for" - "in respect of".

HEARING

SYDNEY
#DATE 15:7:1985

ORDER

1. Order that the proceedings in the Local Court the subject of the notice to offender dated 22 April 1985 be stayed so far as such proceedings are based upon any alleged breach of the condition of the recognizance entered into by the bankrupt on 13 July 1984 that he pay compensation to Kuoni Travel Pty. Limited.

2. Reserve liberty to the bankrupt to apply for further relief on such notice, if any, as a judge may allow.

3. Order that the respondent pay the bankrupt's costs of this application.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

JUDGE1

Mr. Jonathon Victor Sutherland-Cropper, having been made bankrupt on his own petition on 26 March 1984, now applies for a stay of certain proceedings pending against him in the Local Court held at Sydney. The stay is sought pursuant to s.60 (1)(b) of the Bankruptcy Act, 1966 ("the Act") which is in the following terms:

"60. (1) The Court may ... upon such terms and conditions as it thinks fit-

(b) stay any legal process, whether civil or criminal ... against the person or property of the debtor-

(i) in respect of the non-payment of a provable debt or of a pecuniary penalty payable in consequence of the non-payment of a provable debt; or

(ii) in consequence of his refusal or failure to comply with an order of a court, whether made in civil or criminal proceedings, for the payment of a provable debt ..."

The present application arises in the following circumstances. On 13 July 1984, the bankrupt was convicted by a New South Wales Court of Petty Sessions (as it then was) of the offence of obtaining property by false pretences. He was then dealt with by the learned magistrate pursuant to the provisions of s.558 of the Crimes Act, 1900 (N.S.W.). So far as relevant, it reads:

"558. Deferring Sentence.

(1) A court before which a person comes to be sentenced for any offence may if it thinks fit defer passing sentence upon the person and order his release upon his entering into a recognizance ... in such amount as the Court directs, to be of good behaviour for such period as the court thinks proper and to come up for sentence if called upon.

...

(2)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1985] FCA 324
Decision Date: 15 JULY 1985

CaseChat Overview and Summary

In the case of Re Sutherland-Cropper, the dispute involved a bankrupt who had been convicted of obtaining property by false pretences. The bankrupt's sentence had been deferred on the condition that he enter into a recognizance to pay compensation. Upon breaching this recognizance by failing to make the required payments, the bankrupt was called up for sentencing. The matter was brought before the Federal Court to determine whether the proceedings against the bankrupt were valid under the Bankruptcy Act, 1966.

The central legal issue before the court was whether the proceedings against the bankrupt were in respect of a non-payment of a provable debt or were in consequence of the bankrupt's failure to comply with an order for payment. The court had to interpret the relevant sections of the Bankruptcy Act, particularly s.60(1), to determine the scope and effect of the bankrupt's obligations and the consequences of breaching them.

The Federal Court held that the proceedings against the bankrupt were indeed in respect of a non-payment of a provable debt. The court found that the nature of the recognizance and the circumstances surrounding the bankrupt's breach indicated that the legal process was grounded in the non-payment of a debt. Consequently, the court ordered that the proceedings in the Local Court be stayed insofar as they were based on the alleged breach of the condition of the recognizance. Additionally, the court reserved liberty to the bankrupt to apply for further relief if necessary and ordered the respondent to pay the bankrupt's costs of the application.

Orders

Orders of the court

1. Order that the proceedings in the Local Court the subject of the notice to offender dated 22 April 1985 be stayed so far as such proceedings are based upon any alleged breach of the condition of the recognizance entered into by the bankrupt on 13 July 1984 that he pay compensation to Kuoni Travel Pty. Limited.

2. Reserve liberty to the bankrupt to apply for further relief on such notice, if any, as a judge may allow.

3. Order that the respondent pay the bankrupt's costs of this application.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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