Re Taylor

[1993] FCA 1067

/Q63 53

JUDGMENT No. . , . , .

IN THE FEDERAL COURT OF AUSTRALIA )

GENERAJ, DIVISION

No. NP 925 of 1993

BANKRUPTCY DISTRICT OF THE

STATE OF NEW SOUTH WALES

RE:  LESLIE GRAHAM TAYLOR

Debtor

Ex Parte:  PRIME TELEVISION (VICTORIA1
PTY LIMITED

Petitioning Creditor

30 June 1993

REASONS FOR JUDGMENT

LOCKHART J.

This is a petition for sequestration of the estate of Leslie Graham Taylor. Mr Taylor seeks a further adjournment of the petition to enable him to apply to the District Court of New South Wales at Albury to set aside a judgment entered against him on 16 October 1991 by the petitioning creditor, Prime Television

(Victoria )Pty Limited.

I have heard fairly extensive evidence as to the claim which Mr Taylor now asserts against Prime which he seeks to propound either as a set off or a cross claim or perhaps as a defence to the claim of Prime against him which is the subject of the District Court judgment. It is not, I think, appropriate for this Court at this stage of the matter to reach any definitive view as to the prospects of success of the alleged claim of Mr Taylor. If I were of the view that it was a hopeless claim then plainly the adjournment application would fail. I wish to say

very little about the merits of the claim because that is a	matter for the court having appropriate jurisdiction to
determine. It strikes me that there may be some substance in what Mr Taylor asserts against Prime, but ultimately whether it is held to have substance is entirely a matter for the District
Court.
There has been substantial delay since the judgment was entered. Mr Taylor has in effect taken no steps until the last
few days to assert his claim against Prime, but he has given W
reasons for that which revolve around his state of health at different times, his ignorance of his legal rights and what he says in his affidavit was his initial lack of desire to upset staff in the organisation of Prime with whom he had had a long and close relationship.
He has given evidence of his assets and liabilities. Though the evidence is fairly scant and rough it seems that his assets
and his liabilities are roughly equal. He owes the petitioning
creditor some $23,000, he owes Preston Motors $1500 and owes some -
$6000 it seems for rates in relation to his house at Albury. The
petitioning creditor is the only creditor to have interested itself in the matter. Mr Taylor says he has some arrangements with his bank, that has a mortgage over his house, and that Preston Motors is not unduly pressing him for payment. I think in all the circumstances, he should have one last chance to put his house in order and to take whatever steps are necessary to move to set aside the judgment in the District Court. There is prejudice, of course, to the petitioning creditor by reason of any adjournment. It is being deprived in the meantime of its right to prosecute its bankruptcy petition and I take that into account.
I think in the circumstances, it is appropriate to adjourn the petition to a date to enable Mr Taylor to move to set aside the judgment, or to propound a claim that he has foreshadowed against Prime. It is not known of course when the District Court will deal with this matter, but it would seem from what I have been told from the bar table that it might be dealt with in about
mid-August . I think the sensible course is to stand the petition
over to a date in September with liberty to either party to put the matter back if he or it wishes.
Upon Leslie Graham Taylor, by his counsel undertaking to the court to apply to the District Court to set aside the judgment signed against him on 16 October 1991 and to prosecute the application and, if successful, any subsequent proceeding against
petition is adjourned to Tuesday, 14 September 1993. the petitioning creditor, expeditiously and diligently, the
As to costs, although the application for adjournment has been vigorously contested, it is no fault of the petitioning creditor that the application for adjournment has been made so late. It was entitled to come along and in my view entitled to resist the application as it has done.
The debtor seeks an indulgence and in my view, he must pay the price of that indulgence. I order the debtor to pay the costs of the petitioning creditor of this adjournment application, which will include the costs of yesterday and today and of the earlier occasion when the matter came before the court on 22 June 1993.

I certify that this and the

preceding three (3) pages are a true copy of the reasons for judgment herein
Mr. Justice

i'

Dated: 30 June 1993

Counsel for the Debtor T D F Hughes

Solicitors for the Debtor . Skinner Veneris

Counsel for the Petitioning

Creditor	:	P Dodson
Solicitors for the Petitioning
Creditor	.	Pogson Cronin
Date of Hearing	30 June 1993
Date of Judgment	30 June 1993