Savage, Re P. Savage, Ex Parte P. v Castlemaine Tooheys [1986] FCA 657

ih Not for distribution

IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISTON ) QLD. BNL780 of 1986

BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF QUEENSLAND )

RE: PATRICK DANIEL SAVAGE and DONALD ALEXANDER ARMIT

EX PARTE: PATRICK DANIEL SAVAGE and ~. we KE DONALD ALEXANDER ARMIT itr Applicants

CASTLEMAINE TOOHEYS LIMITED Respondent

SPENDER J. BRISBANE

18 November, 1986.

REASONS FOR JUDGMENT

The applicant debtors have applied for an order that the time for compliance with the requirements of Bankruptcy Notice No.1780 of 1986 served on each of them be extended pending the hearing of the notice of appeal lodged by them in Action No.2931 of 1984 in the Supreme Court of Queensland. It is the judgment in that action that founds the bankruptcy notice. On 7 August 1986, his Honour, Mr. Justice Matthews, in the Supreme Court of

Queensland gave judgment to Castlemaine Tooheys Limited, who was

ae he

the plaintiff in that Supreme Court action. The nature of that

action was proceedings on a guarantee.

A Notice of Appeal dated 9 September 19986 has been filed in the Supreme Court of Queensland against that order. The grounds of the appeal seek ta challenge findings of fact and assessments of credibility which his Honour made. Notwithstanding that appeals on that basis face greater difficulties than appeals which are founded on questions of law, or which do not involve assessments of a subjective kind by the trial judge who has the opportunity of observing the witnesses give oral evidence, or against findings of fact based on oral

evidence, it is not right to regard those appeals as inherently

doomed to failure.

Counsel for the debtors who appeared in the trial before Mr. Justice Matthews has, according to an affidavit filed by the solicitors for the debtors, advised there are reasonable prospects of success on the appeal. A point of criticism by counsel for the creditor was that the debtors do not themselves depose to the fact they have reasonable prespects of success. However, I am prepared to accept that where counsel, particularly counsel who appeared in the trial, has advised that there are reasonable prospects of success, and where there is nothing in the material filed which suggests that that is a wholly erroneous assessment, I proceed on the basis that the debtors have shown, on a proper basis, that there are some prospects of success in