Sood v Crown Diagnostic Imaging Pty Ltd

[2006] FCA 1721

FEDERAL COURT OF AUSTRALIA

Sood v Crown Diagnostic Imaging Pty Ltd [2006] FCA 1721

BANKRUPTCY – whether a restraining order over a debtor’s property is effectively a stay of execution of judgment – ability of the debtor to seek order permitting payment of the judgment debt pursuant to s 24 of the Proceeds of Crime Act 2001 (Cth) means execution not stayed – appeal dismissed

Bankruptcy Act 1966 (Cth), ss 40(1)(g), 40(1)(8), 41(3)(b), 58A, 82(3A)
Proceeds of Crime Act 2002 (Cth), ss 7, 18, 24, 36, 37, 38  

Crown Diagnostic Imaging Pty Ltd v Sood (No 2) [2006] FMCA 265, upheld
Sood v Crown Diagnostic Imaging Pty Ltd [2006] FCA 715, related
Director of Public Prosecutions v Sood (unreported, Supreme Court of New South Wales, Studdert J, 7 February 2006) related
Boscolo v Botany Council [1996] FCA 897 followed
Commissioner of Taxation v Stuart-Jones (2000) 102 FCR 296 discussed
Ling v Enrobook Pty Ltd (1997) 74 FCR 19 cited
National Australia Bank Ltd v Pollak (2001) 186 ALR 44 cited
Re Ousley; Ex parte Commissioner of Taxation (1994) 48 FCR 131 cited
Taubert v Eddaglide Pty Ltd (in liq) [2001] FCA 567 cited

Wiltshire-Smith v Olsson (1995) 57 FCR 572 applied

DR SUMAN SOOD v CROWN DIAGNOSTIC IMAGING PTY LTD
NSD 590 OF 2006

GYLES J
12 DECEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 590 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	DR SUMAN SOOD Appellant
AND:	CROWN DIAGNOSTIC IMAGING PTY LTD Respondent

JUDGE:	GYLES J
DATE OF ORDER:	12 DECEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The appellant pay the costs of United Medical Protection Limited.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 590 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	DR SUMAN SOOD Appellant
AND:	CROWN DIAGNOSTIC IMAGING PTY LTD Respondent

JUDGE:	GYLES J
DATE:	12 DECEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This appeal from the making of a sequestration order by Raphael FM (Crown Diagnostic Imaging Pty Ltd v Sood (No 2) [2006] FMCA 265) concerns the interplay between the bankruptcy legislation and the Federal proceeds of crime legislation, as did an earlier interlocutory issue (Sood v Crown Diagnostic Imaging Pty Ltd [2006] FCA 715). The main question in the appeal is whether an order pursuant to s 18 of the Proceeds of Crime Act 2002 (Cth) effectively stays execution on an outstanding judgment against the party subject to that order for the purposes of s 40(1)(g) and s 41(3)(b) of the Bankruptcy Act 1966 (Cth). There is also an issue as to whether the learned Federal Magistrate was in error in making a sequestration order in any event. The facts as to the main question are in a short compass.

2. On…