McLean, Stephen Frank v Biztole Corporation Pty Ltd [1996] FCA 773

CATCHWORDS BANKRUPTCY - sequestration order - proceedings in Supreme Court alleging invalidity of appointment of receiver and manager - notice of opposition grounded on invalidity of appointment of Receiver and Manager - further amended notice of opposition providing greater particularity of invalidity point - whether adjournment should have been granted by a trial judge to permit subpoenas to be called in and documentation examined in relation to invalidity issue - whether lack of natural justice in failure to provide that opportunity - whether trial judge in error in failing to go behind judgment debt - whether trial judge failed to give proper weight to debtors offer to pay into court - whether trial judge failed to give due weight to debtors counter-claim Bankruptcy Act 1966 (Cth), s52, s52(2) Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 In the marriage of Bartlett (1994) 17 Fam LR 405 (FC) Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 Cain v Whyte (1933) 48 CLR 639 Clyne v Deputy Commissioner of Taxation (1985) 5 FCR 1 Corney v Brien (1951) 84 CLR 343 Goktas v GIO (NSW) (1993) 31 NSWLR 684 (CA) House v R (1936) 55 CLR 499 Kioa v West (1985) 159 CLR 550 Olivieri v Stafford (1989) 24 FCR 413 R v Windridge; Ex parte Pacific Coal Pty Ltd (1992) 2 Qd R 180 Stead v State Government Insurance Commission (186) 161 CLR 141 Thai v Deputy Commissioner of Taxation (1994) 123 ALR 570 Wren v Mahoney (1972) 126 CLR 212 STEPHEN FRANK McLEAN v BIZTOLE CORPORATION PTY LTD (ACN 050 139 083) NO VG 780 OF 1995 CORAM: RYAN, FOSTER and R D NICHOLSON JJ DATE: 30 AUGUST 1996 PLACE: MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIAN DISTRICT REGISTRY ) GENERAL DIVISION ) NO VG 780 OF 1995 On appeal from a judgment of a single judge of the Federal Court of Australia B E T W E E N: STEPHEN FRANK McLEAN Appellant and BIZTOLE CORPORATION PTY LTD (Receiver and Manager Appointed) (ACN 050 139 083) Respondent CORAM: RYAN, FOSTER and R D NICHOLSON JJ DATE: 30 AUGUST 1996 PLACE: MELBOURNE MINUTES OF ORDER THE COURT ORDERS: 1.That leave be granted to the appellant to amend the grounds of appeal by inclusion of the following additional ground of appeal: There was a denial of natural justice to the appellant in that having decided to dismiss the appellant's application filed 13 June 1995 for leave to further amend the Notice to Attend and Oppose the Petition and the oral application made on 14 June 1995 to adjourn the further hearing of the petition the learned trial Judge proceeded to make an order for sequestration against the estate of the appellant without giving the appellant the opportunity of being heard on the substantive issue. 2.That the appeal be allowed. 3.That the sequestration order made 30 August 1994 against the estate of the debtor be set aside.