Me IN THE G y TSE /SB - Cc OF_AUS TA ) ISION ) QLD P339 of 1988 STR OF SOUTHERN ) ) DISTRICT OF THE STATE OF QUEENSLAND JUDGE MAKING ORDER: RE: ROGER CH NG EX PARTE: DEPUTY COMMISSIONER OF TAXATION DATE OF ORDER: 22 MARCH 1988 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The first respondent, Roger Ch Ng forthwith deliver to the Official Trustee in Bankruptcy at M.L.C. Centre, 239 George Street, Brisbane: (a) all books, documents, papers, and writings in his custody relating to his trade dealings, property or affairs; (b) all the books, documents, papers and writings in his custody relating to the trade dealings, property or affairs of Patricia Poh Choo Ng, Leisa Pty Ltd, Huat Lee and Sons Holdings Pty Limited, Sentosa Holdings Pty Ltd and any other company of which the first respondent is a director, or in which he owns beneficially any share; The first respondent be restrained without the prior approval of the Court from releasing any person or company from any indebtedness of that person or company to the first respondent until 4.15 p.m. on Friday, 8 April 1988 or further order; The said Roger Ch Ng, Leisa Pty Ltd, Huat Lee and Sons Holdings Pty Limited, Sentosa Holdings Pty Ltd and Patricia Poh Choo Ng, by themselves, their servants or agents be restrained until 4.15 p.m. on 8 April 1988 or further order save with the written consent of the Official Trustee in Bankruptcy first had and obtained: (a) from disposing of or dealing with (including in this restraint mortgaging or creating any manner of charge over), the property of Roger Ch Ng wheresoever situate (including any interest held jointly or in common with other person) or from counselling or procuring or advising or encouraging any other person in the taking of any steps which could result in the disposing of or dealing with (including in this restraint mortgaging or creating any manner or charge over) such property; (b) from removing any of such property as is in the State of Queensland from the State of Queensland or from counselling or procuring or advising or encouraging any other person in the taking of any steps which would result in the removal of any of such property as is in the State of Queensland from the State of Queensland; and (c) from removing any of such property as is in any other State or Territory of the Commonwealth of Australia from that State or Territory or from counselling or procuring or advising or encouraging any other person in the taking of any steps which would result in the removal of any of such property as is in that State or Territory from that State or Territory; Leisa Pty Ltd, Huat Lee and Sons Holdings Pty Limited, Sentosa Holdings Pty Ltd and Patricia Poh Choo Ng by themselves, their servants or agents be restrained until 4.15 p.m. on 8 April 1988 or further order from transferring, or further encumbering or otherwise dealing with their property wheresoever situate without the written consent of the Official Trustee of Bankruptcy first had and obtained which consent shall not be unreasonably withheld; Paragraph 14 of the order of the Honourable Mr Justice Ryan dated 14 March 1988, as to the abridgement of time for hearing of a creditor's petition, be set aside; The application made on behalf of Leisa Pty Ltd, Huat Lee and Sons Holdings Pty Ltd, Sentosa Holdings Pty Ltd, Tristar Management Pty Ltd and Patricia Poh Choo Ng, filed on 22 March 1988, with respect to the Honourable Mr Justice Ryan's orders generally be adjourned. The Court directs that the obligation under par.13 of the order of the Honourable Mr Justice Ryan dated 14 March 1988 be no longer operative as from the coming into effect of this substituted order. As to the costs of the application made by Leisa Pty Ltd, Huat Lee and Sons Holdings Pty Limited, Sentosa Holdings Pty Ltd, and Patricia Poo Choo Ng, the respondent creditor's costs be taxed and paid as to one-half by the applicants, Leisa Pty Ltd, Huat Lee and Sons Holdings Pty Limited, Sentosa Holdings Pty Ltd and Patricia Poh Choo Ng. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN COURT OF AUSTRAL VISION STR OF THE SO! DISTRI OF STATE OF s QLD P339 of 1988 wee we RE: ROGER CH NG EX PARTE: DEPUTY COMMISSIONER OF TAXATION PINCUS J. 22 MARCH 1988 EX TEMPORE REASONS FOR JUDGMENT On 14 March 1988 Ryan J. made an order in respect of the affairs of Mr Roger Ch Ng, then the judgment debtor, now a bankrupt. The order which his Honour made is complained of by persons affected by it - in particular, in that it is said, accurately, that the order, if valid, restrains dealings in property by persons other than Mr Roger Ch Ng. Paragraph 12 of the order has the effect, among other things, of restraining Leisa Pty Ltd and other entities, save with the written consent of the Official Trustee, from disposing of certain property. Paragraph 13 has a similar effect. The contention which was advanced by Mr Robb of counsel for the applicants was that s.30(1)(b) does not empower the Court to make orders of that sort. The full terms of s.30(1) are as follows: "The Court - (a) has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part X or Part XI coming within the cognizance of the Court; and (b) may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter." Mr Robb's point was that the expression, "case of bankruptcy" in (a) is carried into (b) by the expression "any such case", and he urged upon me the view that none of s.30(1) has any effect until bankruptcy occurs; Ng did not become bankrupt until after Ryan J. made his order. It immediately strikes one that the conclusion is improbable, because it would produce the result that in Part X matters there is power to make what might be described as interlocutory orders but none in bankruptcy matters. A _ second answer, however, and a simpler one, is that proposed by Mr Fryberg Q.C., senior counsel for the respondent. He points out that in s.5(1) the word "bankruptcy" is defined, in relation to jurisdiction or proceedings as meaning "any jurisdiction or proceedings under or by virtue of this Act". The context in s.30(1) would tend to make one think the definition could not apply to Part Xoor Part XI matters because they are separately mentioned. Leaving that aside, there does not seem to be any reason not to apply the definition so as to achieve the result that a case of bankruptcy within the meaning of s.30(1) is a case in which any jurisdiction or proceedings under or by virtue of the Act are involved and in that sense the matter was, when before Ryan J., a case of bankruptcy. A third answer to the contention which is made by Mr Robb is that s.30(1)(b) has in the past been regarded as permitting the making of orders prior to bankruptcy. Ina number of cases, orders have before bankruptcy been made, founded upon s.30, dealing with questions such as whether there is a proper judgment debt; see also Re Bayliss; Ex parte Official Trustee in Bankruptcy (1987) 73 A.L.R. 455. I therefore hold that orders of this sort may be made under s.30. The test which must be passed to justify an order under s.30(1)(b) in this sort of case is not that which would justify a Mareva injunction, but simply that prescribed by the Act, namely, that the order must be one that "the Court considers necessary for the purposes of carrying out or giving effect to this Act ..." Here, although as Mr Robb implies the facts are but scantily proved, there is ample reason to apprehend danger to the assets, in the material to which Mr Fryberg has referred. It may prove, on fuller examination of the circumstances, that the assets are, in truth, in no danger or that there is no possibility of having recourse to the assets in the ownership of (for example) Leisa Pty Ltd in this bankruptcy. But following the suggestion put forward in Bayliss' case (above, pp.457, 458), it seems necessary to preserve the position until there has been at least a preliminary look at the affairs of these entities associated with the bankrupt and those of Patricia Poh Choo Ng, the bankrupt's wife. I therefore do not propose to set aside the order. It may be that, on fuller material the Court could be satisfled that there is no basis for continuing the injunctions, but at present it seems to me clear that they should be continued. The second category of matters raised by Mr Robb with respect to the order of Ryan J. is that of variations. The orders made by Ryan J. contemplated service at some earlier time than, in fact, will be achieved. Rather than varying the orders, it seems to me that the proper course is formally to remake them so they will become my orders, and they will be as follows: Firstly, it will be ordered that the first respondent, that is Roger Ch Ng, forthwith deliver to the Official Trustee in Bankruptcy at M.L.C. Centre, 239 George Street, Brisbane, all the books, documents, papers and writings in his custody relating to his trade dealings, property or affairs. Secondly, all the books, documents, papers and writings in his custody relating to the trade dealings, property or affairs of Patricia Poh Choo Ng, Leisa Pty Ltd, Huat Lee and Sons Holdings Pty Limited, Sentosa Holdings Pty Ltd and any other company of which the first respondent is a director or in which he owns beneficially any share. Thirdly, it will he ordered that the first respondent be restrained, without the prior approval of the Court, from releasing any person or company from any indebtedness of that person or company to the first respondent until 4.15 p.m. on Friday, 8 April 1988, or further order. Fourthly, there will be an order in the same terms as those at para.12 of Mr Justice Ryan's order with the exception that the date 8 April 1988 will be substituted for the date of his Honour's order. Fifthly, there will be an order in terms of para.13 of Mr Jutice Ryan's order with the following amendments: 1. that the date 28 March 1988 will be replaced by the date 8 April 1988; 2. that the order will have added to it the expression, "which consent shall not be unreasonably withheld". Sixthly, the order made by his Honour and numbered 14 as to abridgment of time for hearing of a creditor's petition 1s set aside. I propose to adjourn Mr Robb's application in respect of Mr Justice Ryan's order generally, for two purposes: 1. to enable him to bring it on again on fuller material if he wishes; 2. in pursuance of my intimation that I expect the parties to agree upon pertodical figures constituting sums necessary to be expended by Huat Lee and Sons Holdings Pty Ltd, Sentosa Holdings Pty Ltd and Patricia Poh Choo Ng to meet regular periodical expenses. _ If, in fact, the parties cannot agree on that, either because it is suggested there are not any necessary expenses, or because there is a difference as to amount, then I invite Mr Robb's clients to bring the application on again to enable me to deal with that dispute. I direct that the obligation under para.13 of the order of Mr Justice Ryan be no longer operative as from the coming into effect of my substituted order. As to costs, the order will be that the respondent creditor's costs of the application made by Leisa Pty Ltd, Huat Lee and Sons Holdings Pty Ltd, Sentosa Holdings Pty Ltd, and Patricia Poo Choo Ng, be taxed and paid, as to one-half, by the said applicants. Fad -. = ff - lu 'S wer on i', luzres rnce Pancus A Gu Denne ab SST I A632 Dated QQ Maven 1983