Deputy Commissioner of Taxation v Swain, J.P. [1988] FCA 357

JUDGMENT No. =S1...33

steed_seerntaraaccensse

CATCHWORDS

BANKRUPTCY -— Practice - Debtor a party to proceedings in the Family Court regarding division of property - Whether any collision between bankruptcy law and family law - Whether

bankruptcy proceedings should be adjourned pending hearing in Family Court - Whether application for sequestration order under s.236(3) was stale as a deemed petition by virtue of ss.52(4) and 236(5) - Principles relating to adjournment of a proceeding pending the hearing of another proceeding - Whether leave to appeal against a discretionary judgment should be granted - Decision turning on error of principle - Desirability of prompt sequestration in a case where a deed of arrangement has been set aside under s.236 - Effect of protection of maintenance order or maintenance agreement under s.123(6).

Income Tax - Application for relief under s.265 on ground of

Serious hardship - Refusal does not create estoppel against later application.

Bankruptcy Act 1966, ss.40(1)({i), 50, 52(4), 115(1), 116(1)(a), L236) BETSY, (3).

Income Tax Assessment Act 1936, 5.265

DEPUTY COMMISSIONER OF TAXATION -V- JOHN PHILIP SWAIN

NSW G.978 of 1988

Davies, Lockhart & Burchett JJ. Sydney 13 July 1988

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. G978 of 1988

)

GENERAL DIVISION )

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

DEPUTY COMMISSIONER OF TAXATION

Applicant AND:

JOHN PHILIP SWAIN

Respondent

MINUTE OF ORDER OF THE COURT

Judges Making Order: Davies, Lockhart and Burchett JJ. Where Made: Sydney

Date of Order: 13 July 1988

THE COURT ORDERS THAT:

(1)

(2) (3)