Re Tanner, P.T.

[1991] FCA 434

IN THE FEDERAL COURT	)
OF AUSTRATJIA	1
1
QUEENSLAND DISTRICT REGISTRY)	No. QP 752 of 1991
EANKRUPTCY DIVISION	)
BETWEEN:

PETER THOMAS TANNER

Ex Parte: Gunter Otto Will

JUDGE:	Heerey J.
m:	Brisbane

FEDERAL COURT OF

DATE :  22 July 1991 AUSTRALIA PRINCIPAL REGISTRV

..

EX TEMPORE REASONS FOR JUDGlrIENT

I propose to deal first with the application for an adjournment of the hearing of the petition. I decline to accede to that application. One is faced with the undoubted fact that the debt which was the subject of the 1988 proceeding, that is $18,770.13, was admitted to be payable. In the deed dated 15 August 1988 the debtor undertook to make every endeavour to satisfy that debt as soon as reasonably possible. No amount of that debt has been paid.

cleared for the receipt of that evidence.

I was told in evidence by the debtor of certain business

ventures on an enormous scale, which it was said would, if they came to fruition, release commission "in the millions". However, no concrete evidence was provided in support of the existence of these negotiations. There was reference to a fax said to be received on Saturday morning. That was not produced. There was no identification of the parties involved in negotiations even though I made it clear that the evidence would be received in confidence and ordered that the court be

If, for reasons 1 will come to in a moment, I am satisfied that the petitioning creditor's debt is established, it would follow that the petitioning creditor should be entitled to a sequestration order unless I was persuaded of concrete and specific measures which might be likely to result in the payment of the debt within a comparatively short period of time. I am not so satisfied.

The judgment debt the subject of the bankruptcy notice is under a judgment dated 15 October 1990. The amount is $32,712 which was for principal and interest due under the agreement dated 16 November 1984: The argument advanced by the debtor was based on the deed dated 15 August 1988. Shortly prior to that deed being entered into, the petitioning creditor had sued the debtor and a gentleman called Brooke in the District Court at Southport, claiming $18,770.13 under the 1984 agreement. It is important to note that this claim was for interest accrued up until the date of the claim. The principal sum did not fall due until 31 December 1989.

It appeared that the debtor had executed a guarantee to a Swiss company to support a liability of the petitioning creditor who had indemnified the debtor against any call which might be made under that guarantee.

The 1988 proceedings were settled on the basis that the debtor	released the petitioning creditor from his liability to
indemnify the debtor under the guarantee to the Swiss company and, while the debtor acknowledged that he was indebted to the applicant in the sum of $18,770.13, he convenanted only to "make every endeavour to satisfy the debt as soon as reasonably possible".
It seems to me clear that, as a matter of construction, the 1988 deed, when it refers to satisfying "the debt" as soon as reasonably possible, is referring to the debt for $18,770.13,
which was then due. I do not accept the argument that this
substitution of an obligation to make reasonable endeavours for a liability to pay extended to debts which later fell due under the 1984 agreement.
I think that follows as a matter of ordinary construction of the deed of August 1988. It might also make commercial sense to impute to the parties an intention to waive the interest which was then due and for which there appeared to be no defence and which was for a substantial sum in return for giving up the right of indemnity. It is quite another matter to make this waiver extend to all future liabilities under the deed.
I order that a sequestration be made against the estate of the
debtor. I order that the petitioning creditor's costs of and incidental to the petition in this matter including reserved costs be taxed and paid in accordance with the Bankru~tcv Act
1966. The date of commission of the act of bankruptcy is 10 January 1991.

I certify that this and the

preceding two (2) pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice Heerey

ADDearances
Counsel for the Creditor:	Mr J Bond
Solicitors for the Creditor:	Rapp Hickey Morgan Power
Counsel for the Debtor:	Mr P T Tanner appeared on his own behalf