Scott, In the matter of an application for leave to issue a proceeding

This matter concerned an application by Mr Scott for leave to issue a proceeding against the respondent, the Commissioner of Taxation. The application was made pursuant to s 103 of the *Bankruptcy Act 1966* (Cth), which requires a creditor to obtain leave of the court before issuing a bankruptcy notice against a debtor. Mr Scott sought to issue a bankruptcy notice based on a judgment debt owed to him by the respondent.

The primary legal issue before Hayne J was whether Mr Scott had satisfied the requirements of s 103 of the *Bankruptcy Act 1966* (Cth) to be granted leave to issue a bankruptcy notice. Specifically, the court had to consider whether the debt was a liquidated sum payable immediately, and whether there was sufficient reason to grant leave.

Hayne J noted that s 103 requires the applicant to demonstrate that the debt is a liquidated sum payable immediately and that there is sufficient reason for granting leave. His Honour found that the judgment debt was indeed a liquidated sum payable immediately. However, the court also considered the respondent's contention that the debt was subject to a pending appeal. While an appeal does not automatically stay enforcement, the court must consider all relevant circumstances when determining whether to grant leave. In this instance, Hayne J determined that the existence of a pending appeal, coupled with the respondent's financial position, meant that it was not appropriate to grant leave to issue a bankruptcy notice at that time.

Leave to issue the bankruptcy notice was therefore refused.