Federal Court of Australia
IN THE FRDGRAL COURT OF AUSTRALTA
NEW SOUTH WALES DISTRICT REGISTRY } No. G71 of 1977
GENERAL DIVISION ) NA Gey}) ( BETWEEN GEORGE FREDERICK ALLANSON Appellant AND MIDLAND. CREDIT LIMITED
=_ ——r,
and THE OFFiCTaL Recs VER IN BAWKRUPICY
Respondents
AND IN THE MATTER OF 411 APPF from the judgment ana oruer the Honourable Mr. Justice
Franki dated 16th Sopcenber
CORAM: Bowen C.J., Riley and Deane JJ.
22nd September, 1977.
JUDGMENT
This is an appeal from a decision of Franki J. given on 16th September 1977 in the Bankruptcy Jurisdiction. Midland Credit Limited (hereafter called "Midland Credit") by application joining'as respondents George Frederick Allanson and the Official Receiver of the bankrupt estate of Mr. Allanson, sought an order pursuant to s.58(3) of the Bankruptcy Act 1955 granting leave to continue action No. 5415 of 1975 in the Suprene
Court of New South Wales in its comnon law jurisdiction.
His Honour held that he had no jurisdiction to
make the order and further expressed the view that even if he had
jurisdiction, he would, as a matter of discretion, refuse leave. This appeal is brought from that decision by Mr. Allanson. Midland Credit, which made the original application for
leave, was represented on the appeal. Its Counsel said
that it wished leave to be granted but had not appealed because it was content to accept the decision. Apparently Midland
Credit was not anxious to have the action brought on for hearing
-
at an early date.
The Official Receiver was also represented
on the appeal. He adopted a neutral attitude.
The action at common law was commenced by statement of claim issued by Midland Credit on 14th July 1975 against Hallad Pty. Limited, Gayson Homes Pty. Limited, Michael John Haddad, George Frederick Allanson, Marlene Haddad, /nthony Haddad, Cherry Haddad, Anita Mazuran, Marlene Hille, Gloria Cherote and Lily Caon. The statement of claim alleged the giving of a mortgage, variations of its terms, default in payment of interest, and liabilities under various deeds in the nature of guarantees. It was said that by reason of the variations, interest was payable on the principal sun secured by the mortgage at the rate of twenty~one per centum per annum and the plaintiff claimed $828,168.52 from each of the first four defendants and $60,000.00 from each of the other
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