McLean v Biztole Corporation Pty Ltd

[1996] FCA 773

---

Stephen Frank McLean
Biztole Corporation Pty Ltd (rcvr & mngr apptd) (ACN 050 139 083)

Court:

Judges: Ryan
Foster
Nicholson JJ

Subject References:
Bankruptcy
sequestration order
proceedings in Supreme Court alleging invalidity of appointment of receiver and manager
notice of opposition grounded on invalidity of appointment of Receiver and Manager
further amended notice of opposition providing greater particularity of invalidity point
whether adjournment should have been granted by a trial judge to permit subpoenas to be called in and documentation examined in relation to invalidity issue
whether lack of natural justice in failure to provide that opportunity
whether trial judge in error in failing to go behind judgment debt
whether trial judge failed to give proper weight to debtors offer to pay into court
whether trial judge failed to give due weight to debtors counter-claim

Legislative References:
Bankruptcy Act 1966 (Cth) - 52; 52(2)

Case References:
Ahern v Deputy Commissioner of Taxation (Qld) - (1987) 76 ALR 137
Ainsworth v Criminal Justice Commission - (1992) 175 CLR 564
In the marriage of Bartlett - (1994) 17 Fam LR 405 (FC)
Boston Clothing Co Pty Ltd v Margaronis - (1992) 27 NSWLR 580
Cain v Whyte - (1933) 48 CLR 639
Clyne v Deputy Commissioner of Taxation - (1985) 5 FCR 1
Corney v Brien - (1951) 84 CLR 343
Goktas v GIO (NSW) - (1993) 31 NSWLR 684
House v R - (1936) 55 CLR 499
Kioa v West - (1985) 159 CLR 550
Olivieri v Stafford - (1989) 24 FCR 413
R v Windridge; Ex parte Pacific Coal Pty Ltd - (1992) 2 Qd R 180
Stead v State Government Insurance Commission - (186) 161 CLR 141
Thai v Deputy Commissioner of Taxation - (1994) 123 ALR 570
Wren v Mahoney - (1972) 126 CLR 212

Hearing date: 14 March 1996
Judgment date: 30 August 1996

Melbourne

---

THE COURT ORDERS:

1.

That leave be granted to the appellant to amend the grounds of appeal by inclusion of the following additional ground of appeal:

There was a denial of natural justice to the appellant in that having decided to dismiss the appellant's application filed 13 June 1995 for leave to further amend the Notice to Attend and Oppose the Petition and the oral application made on 14 June 1995 to adjourn the further hearing of the petition the learned trial Judge proceeded to make an order for sequestration against the estate of the appellant without giving the appellant the opportunity of being heard on the substantive issue.

2.

That the appeal be allowed.

3.

That the sequestration order made 30 August 1994 against the estate of the debtor be set aside.

4.

The petition be remitted to Justice Olney for orders to be made for the return of summonses to witness addressed to Carl Mattingly, Brian Hibditch and Peter Anthony Pritchard and of a subpoena for the production of documents addressed to The General Manager, Australia and New Zealand Banking Group Limited in the form of the subpoena issued on 13 June 1995 in the proceedings numbered VP 486 of 1994 and for the fresh exercise by his Honour, after the taking of evidence from the said witnesses and the production of the documents required by the said subpoena, of the discretion conferred by s52 of the Bankruptcy Act 1966 (Cth).

5.

That the costs of both parties of the appeal be costs in the petition remitted for further hearing pursuant to paragraph 4 of this Order.

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