Not tor distribution von AIS, 88 JUBCME IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ) QLD PET NO. 782 of 1988 BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF QUEENSLAND ) RE: JOHN TURNBULL Debtor EX PARTE: PONGRASS OPERATIONS PTY.LTD. Creditor SPENDER J. BRISBANE 22 JULY 1988 EX TEMPORE REASONS FOR JUDGMENT This is an application made to the Court on behalf of John Turnbull, who was the respondent to a creditor's petition No.782 of 1988. The application before me is that the sequestration order made by Deputy District Registrar Allen this morning be rescinded, or, alternatively, discharged. The basis of the application seems to be, as deposed to by the affidavits of Robert Douglas Backstrom and Brett St. Clair Bolton that, notwithstanding the service of a creditor's petition on Mr. Turnbull on 29 June 1988, returnable on 22 July 1988 (this morning), the facts were that on 15 July 1988 Mr. Turnbull and his wife, Carolyn Turnbull, had signed an authority pursuant to s.188 of the Bankruptcy Act 1966. This authorized one Peter David Rodgers, a member of the firm of Love and Rodgers, of St. Martin's Tower, 31 Market Street, Sydney, to call a meeting of the creditors of Mr. and Mrs. Turnbull pursuant to Part X of the Bankruptcy Act 1966, and to take control of their property in accordance with that part. A further basis deposed to is that a meeting of creditors pursuant to that authority had been called for and will be held on Thursday, 11 August 1988 at 2.30 p.m. No notices of that meeting have, as yet, been despatched to the creditors of Mr. and Mrs. Turnbull. That is the extent of the material touching upon the reasons why the sequestration order made this morning by Deputy Registrar Allen, pursuant to s.31A of the Bankruptcy Act 1966 should be rescinded or discharged. Mr. Backstrom deposes that this morning before the Registrar he told Mr. Allen that the debtor had entered into an arrangement with creditors which required a meeting of creditors to be held and that an adjournment was sought of the petitioning creditor's petition so that the meeting might go ahead. Solicitors for the petitioning creditor informed the Deputy Registrar that their instructions were to proceed with the petition. The material shows that the Deputy Registrar said that there was not sufficient grounds on the material before him to order an adjournment of the petition, and he proceeded to make a sequestration order. The matter seems to me to be clear. The basis of the application for an adjournment before the Registrar was that authority under s.188 had been signed and that in the near future a meeting of creditors would be called. In those circumstances, it was suggested to the Deputy Registrar that it would be a proper exercise of his discretion to adjourn the matter so as to enable the view of the creditors at that meeting to be determined, and that it would be wrong to frustrate whatever their views might ultimately turn out to be by the making of a sequestration order today. In my view, it is clear that a petitioning creditor is entitled to his order if every other circumstance in relation to the making of that order has been satisfied and that he is not to be held out of the benefits of such an order by the fact that the debtor has, a short time before the hearing of the petition, signed an authority under s.188 summoning a meeting of his creditors pursuant to Part X of the Bankruptcy Act 1966. There has been no reason advanced why the making of the sequestration order is not otherwise proper. In those circumstances, it seems to me that authority calls for the conclusion that it would be a wrong exercise of the discretion to hold a petitioning creditor out from his order simply because the debtor had signed a section 188 authority a short time before the return date of the petition. In those circumstances, I decline to make any order on the application to me by the debtor and in the circumstances I dismiss the application with costs to be taxed if not agreed. | certify that this and the Xx preceding Pages are a true copy of the reasons for judgment herein of His Honour Mr. Justice Spender