Street S. v Retravision (NSW) Ltd

[1995] FCA 731

IN THE FEDERAL COURT OF AUSTRALIA )
GENERAL DIVISION                 )

BANKRUPTCY DISTRICT OF THE       )  Nos. NP671-674 of 1995
STATE OF NEW SOUTH WALES             )

RE:STANLEY STREET,

JUNE SHEILA STREET,

FRANCIS TERENCE HALLS and

COLLEEN MAY HALLS

Judgment Debtors

EX PARTE:RETRAVISION (NSW) LIMITED

Creditor

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    13 JUNE 1995

REASONS FOR JUDGMENT

In each of these matters involving Mr and Mrs Halls and Mr and Mrs Street, a petition has been lodged by the petitioning creditor Retravision NSW Limited ("Retravision"), represented by Mr Johnson.  In addition there appears before me Ms Nash acting for the Wingecarribee Shire Council and Convoy International Pty Limited as supporting creditors.  The petitions date back to March 1995 and are based upon non-compliance with a bankruptcy notice issued by the creditor Retravision.  That bankruptcy notice is based upon a judgment obtained by the creditor after a hearing of four days in the Supreme Court of New South Wales.

I have been given copies of two judgments of the Chief Judge of the Commercial Division, Giles J, dated 14 December 1994 and 20 December 1994 respectively.  An application to stay the orders ultimately made following that hearing failed.  An appeal has been lodged with the Court of Appeal.  The appeal index is due to be settled this week but to date no application for expedition of the appeal has been made.  Affidavit material before me indicates that inquiries suggest that an actual appeal might not take place for two years.

In essence, counsel for the debtors seeks an adjournment to enable the appeal to be heard.  It is obvious enough that if an adjournment were given for anything like two years the petitions would be stale.  No evidence has, at this stage, been adduced to give any indication of the solvency or otherwise of the debtors and it is said from the bar table that additional amounts now claimed by Retravision are in dispute.  There is some measure of dispute also, so it is said, as to the debts of the supporting creditor.

At this stage I am not prepared to grant to the debtor any substantial adjournment.  However, I am prepared to adjourn the matter for approximately two weeks to a date before me when I will consider the matter further.  I note an undertaking by the solicitor for the debtors to pursue the appeal which includes, of course, the settling of the appeal index, and to make forthwith an application to the Court of Appeal for expedition of the appeal. 

I direct the debtors to file evidence of assets and liabilities so far as possible in admissible form.  For this purpose I note that the petitioning creditor has indicated through counsel that such books and records as are presently kept by the receiver of various companies with which the debtors were concerned will be made available.  It will be necessary also for the debtors to file such evidence as they may be able to, concerning opposition to other debts disclosed as owing by them in material before me to the petitioning creditor as well as to the supporting creditors.  When all this information is obtained I will consider the matter further.  I should say, as presently advised, it seems to me that to allow adjournment of the petition will not ultimately do more than delay the evil day. 

There appear to be large debts owing by each of the debtors.  The matters raised in the judgment of Giles CJ and the notice of appeal from that judgment seem to me to depend to a large extent on credit and the appeal may not have great chances of success.  However, it is inappropriate that I discuss, at this stage at least, matters of that kind.

I will stand the matter over until the 28 June 1995. The affidavit material should be filed and served then no later than Monday 26 June 1995 at 4.00 pm.  I will reserve costs.  There will be liberty to apply on 24 hours' notice.

I certify that this and the
preceding three (3) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.

Associate:

Date: 

Counsel and Solicitor       J Chippendall instructed by

for Debtors:                A Jackson

Counsel and Solicitors      J Johnson instructed by

for Creditor:               JR Gibb & Co

Date of Hearing:            13 June 1995

Date Judgment Delivered:         13 June 1995