Re The Creditor's Petition of Roman Kovac Against Gregory Taylor; State Bank of New South Wales v Taylor, Gregory

[1998] FCA 524

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7999 of 1997

RE:

EX PARTE:

THE CREDITOR’S PETITION OF ROMAN KOVAC AGAINST GREGORY TAYLOR

STATE BANK OF NEW SOUTH WALES
Applicant

AND:

GREGORY TAYLOR
Respondent

JUDGE:	BURCHETT J
DATE:	11 MAY 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

In this matter I have been asked to grant a stay, not of a positive order that something be done, nor of a restraining order that something not be done, but of an order dismissing a petition.  The ground on which that application is made is simply that the party applying, a secured creditor which claimed to be insufficiently secured and asked to be substituted as petitioning creditor, has, so it is alleged, a strong prospect of success in the appeal it seeks to bring against the refusal by a judge of the Court to make an order substituting it as petitioning creditor, and his dismissal of the relevant petition.

I do not, of course, purport to enter into the question whether the appeal should or should not succeed.  This would be an entirely invidious task for a single judge, and I do not think there is any principle which would require or authorize me to undertake that task.  I think it is necessary that I, as a single judge placed in the position in which I am placed, should confine myself to the consideration whether the appeal is reasonably arguable.  Cf. Sharp v Deputy Commissioner of Taxation (1988) 88 ATC 4184, which dealt with the proper approach of a single judge to the consideration of a grant of leave to appeal from another judge.

However, for the purpose of the argument, I have been prepared to consider the matter on the assumed footing that the appeal actually has good prospects of success.  Even on that basis, it does not seem to me that it would be appropriate to grant a stay of the order dismissing the petition.  That would be to impose a strong detriment on a party who has been successful in the litigation, and I do not think that a judge of the Court should do that, at any rate except in the most extraordinary circumstances, in a case of this kind.  The debtor is entitled to the fruits of the decision of the judge that the petition be dismissed, subject only to the normal right of appeal and the risk that the exercise of that right of appeal may ultimately lead to a reversal of the decision, not by another single judge, but by a Full Court. 

Accordingly, I shall refuse the application to continue the temporary stay, which the judge granted only, as I understand it, to enable the present application to be made.  Counsel for the respondent asks for an order for costs, and I think there can be no adequate reason for refusing to make such an order.  Therefore, I dismiss the application with costs.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett

Associate:

Dated: 14 May 1998  

Counsel for the Applicant:	Mr R A Parsons
Solicitor for the Applicant:	Abbott Tout
Counsel for the Respondent:	Mr L J W Aitken
Solicitors for the Respondent:	Holman Webb
Date of Hearing:	11 May 1998
Date of Judgment:	11 May 1998