Cirillo v Consolidated Press Property Pty Ltd (formerly known as Citicorp Australia Limited) [2007] FCAFC 167

FEDERAL COURT OF AUSTRALIA

Cirillo v Consolidated Press Property Pty Ltd (formerly known as Citicorp Australia Limited) [2007] FCAFC 167 BANKRUPTCY – creditor's petition – application by debtor for adjournment to allow further proceedings to be taken in another court in relation to judgment on which debt claimed by petitioning creditor was based – alternatively debtor proposed to seek pre-action discovery with a view to setting aside same judgment – refusal by primary judge to stay sequestration order – nature of discretion to grant adjournment – whether favourable exercise entailed by assumption of a genuine arguable case in the other court – whether short adjournment should have been granted to enable debtor to file further affidavits and written submissions – relevance of capacity of trustee in bankruptcy to pursue relief in the other court – whether assumption of existence of an arguable case in other court continued to be made when primary judge exercised discretion whether or not to make a sequestration order – matters relevant to the exercise of that discretion – evidence required to establish prior legal assignment by petitioning creditor of chose in action which gave rise to judgment debt. Bankruptcy Act 1966 (Cth) ss 41(6A), 41(6C), 43 and 52(3) Law of Property Act 1936 (SA) s 15 Murdaca v Acounts Control Management Services Pty Ltd [2007] FCA 964 de Robillard v Carver [2007] FCAFC 73 State of Queensland & Another v JL Holdings Pty Limited (1997) 189 CLR 146 Cirillo v Citicorp [2001] SASC 349 Durham Brothers v Robertson [1898] 1 QB 765 Bloch v Bloch (1981) 180 CLR 390 EG & H Nominees v General Mutual Insurance Co (In Liquidation) (1976) 50 ALJR 460 Heath v Tang [1993] 4 All ER 694 Cummings v Claremont Petroleum NL (1996) 185 CLR 124 Evans v Hi Fert Pty Ltd [2003] SASC 186 Williams v Official Trustee in Bankruptcy (1994) 122 ALR 585 Joosse v Deputy Commissioner of Taxation (2004) 13 FCAFC 245 Wren v Mahony (1972) 126 CLR 212 NRMA Insurance Limited v Vale [2001] FCA 511 Bryant v Commonwealth Bank of Australia (1991) 134 ALR 460 Chamberlain v Deputy Federal Commissioner of Taxation (1991) 28 FCR 21 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Wolff v Donovan (1991) 29 FCR 480 Re Skaff Ex Parte Farrow Mortgage Services Pty Ltd (19993) 41 FCR 331 Amos v Brisbane TV Ltd (2000) 100 FCR 82 Holt v Heatherfield Trust Ltd (1942) 2 KB 1 Holwell Securities Ltd v Hughes (1973) 2 All ER 477 Huddersfield Banking Co Limited v Henry Lister & Son Limited [1895] 2 Ch 273 Chamberlain v Deputy Federal Commissioner of Taxation (1991) 28 FCR 21 National Australia Bank v Zollo [2000] FCA 972 House v The King (1936) 55 CLR 499 Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 VINCENZO GIOVANNI CIRILLO v CONSOLIDATED PRESS PROPERTY PTY LTD (FORMERLY KNOWN AS CITICORP AUSTRALIA LIMITED), C W CONSTRUCTION PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION), JOHN HAROLD HEARD and STEPHEN ELLIOT YOUNG SAD 57 OF 2007