| AGO) >: JUDGMENT No. LK Qual oS, wAPRQHW.R OS VANKRUPTCY - appaacatien for adjournment cr tea ing ot ceedeoee petition - effec. in cerehion of executim _ regiscered trusteo pur-uart to Fart "of tke vamtcehe ae (Com) - applicaticn refused. Bankruptcy Act lve Fart » KE: WILLIAM JObN GLEESON EX PARTE: QUEEN: LAND CP GGISTS LIMITED ILD PET 279 OF 1984 <PENDER J. Bk ITS BANE 26 NOVEMRER 1984 GENERAL DIVISION RANFPUPTCVY DISTPICT UF. THE SOUTHERN ue le] eal Hd ~ be > we SISTPICT OF THE STATT Ui QUEENSLAND wi ni. -i£M TOHN GLEESON SUDGE MAKING OPDEF; UATE OF OPDEF : HERE MADE: Lhe COURT ORDEPS THAT: The sebtor refused. QUEENSLAND DRUGGIET In eal Ina 26 NOVOIMETP i" lt BRISBANE s application for an acjournmrent be IN THE FEDEPAL <OUF1 OF AUSTRALIA) GENEPAL DIVISION ) WL EET 2/4 or lard BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE SsT27E_ °F OURENSLAND ) RF: WILLIAM JuHN GLEESON FY FATE: (QIEENSLAND BRUGGIS Ms MDE. _2FNDER 2. De op LMARE Lea EXTEM-ObE PEASONS FOR JUDGMENT I deal, tivet, with the question of the aprlictatien toy an adjournment. On 12 Novemper °984, an application fo: a <2quectration oyder was made by Queensland Druggists Limited against the ectate oF the debtor, Wiilian John Gleeson. Qn that dav, an tre application of Mr Gleeson, through hig coantei Me Moerisom, 4 adjourned the anmolication ani the hearing of thea pelaitier urtil Lhis morninr, ang . ordered that Me Gleet-n pay rhe metitionins wreditor's cast. of rhit aay, which I fixea ar oedur, cv loplim. on 19 November 1984. The purpose for which I granted the idjeournment c: ctha- accasion was to enable Mr Gleeson to see ~hether a meetirg or meetings in Sydney would prove frurtful ino resolving sic financial position, to enable him to have that orp thereby avoid making a sequestration order anqzinst hav ar alternative resolution rzould be found. This morning, Mr Morrison informed me that Mr Gleeson mad on Friday 23 November in Sydney sigred an authority taa registered trustee, a dshn William O'Brien, to cail a meeting of ereditors and take over control of his pronerty. A photocaey 'lozument, subsequertiy cronfirmed by a vocadex 'iucumens trom th: federal Court 2F Anustrtralla Registry, New goath Wales Cisctracr wegistry, confirms that Mr O'Brien concenred oars segre Pootrat vuitherity, also last teaiday. Io was told thar one pot. e ta the Olicitors for the petitioning creditor had ween aiven of those »lans. Mr Morrison ha: requested on behali of the dahtor that the application for a sequestration order be turther at oournicd, and my attention was drawn to the comme nie cf Rylew F Venetoulis; ex parte Valoeil Ltd (1976) 13 ALP €25 Hie Honour there said at p.Z6:- On 1 June 12/76 Calsil Ltd filed a creaitor's petition for a sequestration order againr M.B. (Michael) Venetoulis. The return date of the petition was 18 August 1975. On that day 1 was fold that on 11 August the dentor had ¢igned an authority under s.18F 4 Rankruprey Act, that a registered truetes haa consented .n writing to exerciws the rorers conferrel by the authority, ard that 43 meeting of creaitors was to be held san. I thereupon adjourned the further heating te la September, on which day it was, by ccneenn, further adjourned to 29 September." In reliance on those observations, it was submitted for the debtor that, in the ordinary course, this matter ought to be adjourned so that the views of the creditors as a whole could be ascertained. In Field v. Commercial Banking Co. of Sydney Ltd (1978) 22 ALR 403, the Full Court of the Federal Court was concerned with the question of whether an application for a sequestration order ought to be adjourned by virtwe of the fact that an authority pursuant to Part X of the Bankruptcy Act 1966 had been signed. The Full Court, by a majority consisting of C.A. Sweeney and Franki JJ., in dismissing the appeal from the trial judge's decision not to grant an adjournment so as to enable a meeting of creditors to be held pursuant to the authority under Part X, held (as conveniently summarised in the headnote) that:- "The court has not adopted a practice, when a petition comes on for hearing after the execution of an authority and before any meeting of creditors has been held, of invariably or generally adjourning the hearing of the petition to enable the meeting to be held. It would be a strange result otherwise because, on the other hand, where a meeting of creditors has passed a special resolution for a deed, the court can, pursuant to s.206 of the Bankruptcy Act 1966 (Com), adjourn the hearing of a petition only if it appears that it would be for the advantage of the creditors that the debtor's affairs be administered under the deed." I indicate tnat in respect of the avpliciticn for an adjournment, there was no affidavit material filed in an attempe to persuade the court that 1t would be for tre advantage of the creditors 1f the debtor's affairs were administered under a deed -anctioned by a meeting of creditors called under Part % of Lhe nankruptcy Act. The Full Court also held that:- "The executior of an authority pursuant ¢t Pt X of the Hankruptcy Act 1966 (Com) 15 onl one of the circumstances, amongst manv, to t considered with respect to an application fo an adjournmert of a creditor's petiticr,' a ¥ - x in the circumstances of the history of the Litieatior ir that case, the court concluded that that history, the admit cealy nelated execution ct the authority and the silences cf th ippellant's affidavit in support of his applicati n fer an adjournment all held strongly against the granting o2f the application, and that to adopt any view to the contrary would be vaken as conf'rrairq a right upon a deptor to coptain an vatournment samply by executing an authority on the eve of the rearing ot the petition, In the judgment of C.A. Sweeney J. reference was made to Pozenbes v. Kronhili '1956) 95 CLR 407 at 414. His Honour said at p.414:- "In Rovenpes v. Kronhill (1956) 95 CLR du/ wt 414, Bixor CI, Webb and Fullager JJ «aid: 'In @ain v. wWhyte (1933) 48 CLR 639, this cruel expressed agreement with a judamenr it the Supreme Court of jJueensland (Henctra: sooan which his Honour said: "' oy. prima t on proof of the matters mentioned in 3.5 the court wili proceed to make an orde sequestration and ... it is for the debtor show some cause overriding the interest of the public in the stopping of unremunerative trading, and the rights of individual creditors who are unable to get their debts paid to them as they become due. Something has to be put before the court to ourtveich those considerations before it can be ¢aid that sufficient cause 18 shown against the making of a sequestration order".'" Cc ar ca) Franki J., in a short concurring judgment, said at p.414:- "So far as -oncérns the proper approactn ta adjournment applications those reasons appear ta me 'reterring to C.A. Sweeney dU's. reasons) to ve in accord with the principles expressed by the High Court in 5s and du Nominees Pty Ltd v. General Mutual Insurance Co Ltd (in liq) (1976) 50 ALJR 466, and with the general principles referred to in The Supreme Court Practice 1976 (The White Boor: at pp.548-9 and Williams Supreme Couet Practice (1973) 2nd ed, pp.1562-4." Applying those principles and being guided by these observations, this is a case where no material, sufficienrly weighty, has been placed before this court te indicate that it would be to the advantage of creditors generally that tne debtor's affairs be administered by a deed sursuant ty tne Pur 3. a) authority ot a meetina called under the Part % authcrscn. 7 those circumstances I will not grant the adjournment covert, and will now hear Miss Wadley in respect of 'tre supstantive application for sequestration. 1 certify that this anc! the Y judgment harvin or Hr, i onour Mr. Justice Spender Dated 24, H wy