Re Towie, Christopher Rees Ex Parte Bobo Nominees Pty Ltd

[1995] FCA 965

IN THE FEDERAL COURT OF AUSTRALIA )

BANKRUPTCY DISTRICT IN THE       )        VP 907 of 1995

STATE OF VICTORIA                )

RE:CHRISTOPHER REES TOWIE

(Debtor)

EX PARTE:BOBO NOMINEES PTY LTD

ACN 005 238 175

(Petitioning Creditors)

CORAM:    RYAN J

PLACE:    MELBOURNE

DATE:     15 NOVEMBER 1995

MINUTES OF ORDER

THE COURT ORDERS:

1. That there be a sequestration order against the estate of the debtor.

1. That the date of the act of bankruptcy be noted as 10 June 1995.

1. That the petitioning creditor's costs, including any reserved costs, be taxed and payed in accordance with the statute.

1. That there be a stay of proceedings under the sequestration order for 21 days.

NOTE:Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

BANKRUPTCY DISTRICT IN THE       )        VP 907 of 1995

STATE OF VICTORIA                )

RE:CHRISTOPHER REES TOWIE

(Debtor)

EX PARTE:BOBO NOMINEES PTY LTD

(Petitioning Creditors)

CORAM:    RYAN J

PLACE:    MELBOURNE

DATE:     15 NOVEMBER 1995

REASONS FOR JUDGMENT

Ryan J:   The debtor has applied for an adjournment of this petition.  That application is based on two separate grounds.  In the first place the debtor seeks an opportunity to prepare a further affidavit in response to a detailed affidavit by Sara Justine Reid which was sworn on 13 November 1995 and traces the history of the proceedings leading to the judgment in the County Court on which the petition is based.  That judgment was entered after the debtor had failed to comply with a condition on which he had been granted leave to defend, namely that he pay into court the amount which the plaintiff had claimed in the County Court action.

Chief Judge Waldron subsequently refused to set aside the judgment which had been obtained against the debtor in the County Court.  The debtor then took out an originating motion in the Supreme Court seeking to set aside the judgment entered in the County Court.  Although the Supreme Court has refused an application by the petitioning creditor to strike out that originating motion, I am not persuaded that there is significantly more which the debtor could say, if given the opportunity, to persuade this Court to go behind the judgment in the County Court, so as to consider for itself whether the debtor is in truth and fact indebted to the petitioning creditor as guarantor of the liability of Bradbun Pty Ltd on the award of Dr Croft as arbitrator under the Retail Tenancies Act.

Of greater importance to the exercise of my discretion on an application for adjournment is the admitted debt owed, again under a judgment of the County Court, to the supporting creditor, Alma Park Pty Ltd.  That debt is in the sum of $127,992.  The debtor has applied to the Registrar of the County Court for an order that he be permitted to pay that debt by instalments of $1000 a week or $5000 a month.  That application has been refused but I am told that the debtor proposes to pursue an objection which will allow him to have that refusal reviewed by a judge of the County Court.

It has been put by Mr Williams of counsel for the debtor that, if that review were to succeed, the debtor would be able to pay his debts as they fell due since, from the date of any instalment order, the Alma Park debt would fall due at the rate of $5000 a month, or something of that order.  However, I consider that the Court should view the adjournment application in the context of the factual situation as it obtains at present.   On taking that view, I consider that there is a strong balance against the exercise of discretion in favour of the debtor.  Accordingly the application for adjournment is refused.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment of his Honour Justice Ryan.

A/Associate:

Date:

Counsel for the Debtor      :    Mr D J Williams

Solicitors for the Debtor    :    Corrs Chambers Westgarth

Counsel for the Petitioning

Creditor:    Miss S. Horowitz

Solicitors for the
Petitioning Creditor        :    Trumble Szanto Braham

Date of Hearing             :    15 November 1995

Date of Judgment            :    15 November 1995