Shephard v Chiquita Brands (South Pacific) Limited [2001] FCA 1394

FEDERAL COURT OF AUSTRALIA

Shephard v Chiquita Brands (South Pacific) Limited [2001] FCA 1394 BANKRUPTCY – motion for extension of time to comply with bankruptcy notice pending resolution of appeal from decision of Federal Magistrate declining to set aside bankruptcy notice – on grounds that act of bankruptcy would make nugatory any outcome of appeal – motion dismissed Bankruptcy Act 1966 (Cth)

Byron v Southern Star Group (1997) 73 FCR 263 referred to Warner v Frost [1999] FCA 830 referred to Guss v Johnston (2000) 171 ALR 598 referred to DEREK GEORGE SHEPHARD V CHIQUITA BRANDS (SOUTH PACIFIC) LIMITED N 1335 of 2001 ALLSOP J SYDNEY 26 SEPTEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1335 of 2001

BETWEEN: DEREK GEORGE SHEPHARD

APPLICANT

AND: CHIQUITA BRANDS (SOUTH PACIFIC) LIMITED

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 26 SEPTEMBER 2001

WHERE MADE: SYDNEY

THE COURT: 1. orders that on the condition that the respondent undertakes to the appellant to consent to the adjournment of any final hearing of the petition until the resolutionof any appeal from the decision of Driver FM, such undertaking itself being conditional upon the appellant taking all steps reasonably necessary to prosecute such appeal expeditiously (and noting that such undertakings are given), the notice of motion be dismissed; 2. grants liberty to apply on two days' notice in relation to any question of the compliance by the appellant or the respondent with the undertakings and conditions referred to in order 1. above; 3. orders that costs of the motion be costs in the appeal; and 4. directs that the undertaking by the respondent in no way prevents it from taking all necessary steps to bring any bankruptcy petition to a state of readiness for hearing. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.