~~ IN THE HIGH COURT OF AUSTRALIA. REASONS FOR JUDGMENT. Delivered at... Monday on... 40958 A. HL. Prerirsn, Aorise Govt. Purwt. IN THE HIGH COURT OF a NEW SOUTH WALES REGISTRY No. 21 of 1944 MILLAR & ORS. ve. LEVEK . Rist August 1944. JUDGHENT. LATHAM C.J.: This is an appeal from an order of sequestration made against the appellants. The ground of the order was failure to comply with a bankruptcy notice issued in respect of a judgment. to the amount of £65; altogether the amount owing to the petitioning creditor was £264. The failure to comply with the bankruptcy notice was established and, therefore, there was ground for making the order of sequestration. The learned Judge, Judge Lukin, on the 30th April 1942 granted a stay of proceedings under Regulation 9 of the Debtor's Relief Regulations made under the National Security Act. This regulation provides: "Where....it is proved to the satisfaction of the Court that the inability of the deptor to pay his debts is due to circumstances attributable to the war, the Court (including the Court of Bankruptcy) may in its absolute discretion, after considering all the circumstances of the case and the position of all the parties, at any time stay the proceedings under the petition for such time and subject to such conditions as the Court thinks fit." His Honour Judge Lukin applied that provision and granted a stay for twelve months. At the end of the twelve months the proceedings were adjourned and one of the adjournments was upon the defendants! undertaking to endeavour to sell their properties prior to the 15th June 1943. Nothing has happened and it 1s now contended that the order of sequestration s hould be set. aside, or, alternatively, at least that a stay should be granted by this Court under the Regulation. The grounds of appeal are that the defendants are really solvent, that war conditions still operate and that war conditions are responsible for the condition of the defendants. As to the first point, that the defendants are really solvent that depends upon estimates as to the value of equities of redemption of various properties, the principal one of which - said to have been worth at one time £47,000 to £50,000 - is in the possession of the mortgagee and it appears, therefore, that default has been made in payment of interest. Tne contention that the defendants are solvent is based upon estimates and speculation and -2- there was evidence, which the learned Judge was at liberty to accept, which fully entitled nim not to act upon the basis tnat the defendants were solvent. If the defendants are solvent there snould be no difficulty - and by solvent in this connection I mean really able to pay their depts upon reasonable realisation ~ in making arrangements witn tne creditors. As to the other point, tnat war conditions are stili operating, in the real estate market that is undoubtedly tae case, but tne question of tne weight to be attucned to such considerations in a particulur case is rewitted: to tne absolute discretion of tne Court umier regulation 9 and upon an appeal tae Court should not disturb the exercise of the discretion unless it 4 showm that weight had been given to irrelevant matters or that tne Court nad omitted to take into account wlatters that were relevant. éecordingly, it would not be proper for tne Court upon this appeal merely to look at the matter again anu substitute its ow discretion for tue discretion of the learned Judge unless it was show tnat the learned Judge had acted upon 4 wrong principle, taken into account irrelevant metters or excluded matters that were relevant. His Honour sai. t.at "tne creiitors must ve consiuered as well as tne ueptors and it sould be unfulr to creditors to say that the nearing of the petition suould be stayed tor an indefinite time; it aay be for months, peraaps for years, in tne Hope taal sometning might turn up to help tne ieptors. I do not propose to accede to any rejuest that tais snould be done. After a lapse of two years, I do not see why ereditors s hould stand by until aii prospect of getting sometning from the deotors was gone", and His Honour was of opinion tnat the position of tne debtors was becoming worse time procecded. ted In tais Court a suggestion has been made tnat a stay snould be ¢ upon condition that payment of tne 1ebt is made, in tne nope that tae real o state market will improve. The creditor nas riguts ani prisa facie ne is entitled to the order which has been muge. All the otner matters mentioned Jepend upon tne exercise of the discretion of tne Court. In ay opinion it has not been shown that the Judge nas acted wrongly in any respect and therefore the appeal should be dismissed with costs. ORDER: Appeal dismissed witu costs, inciuding any reserved costs, to be paid out of the Estate. IN THE HIGH COURT OF AUSTRALIA NEW SOUTH, WALES REGISTRY ) No. 21 of 1944 aHILLSR & ORS. v. LEBER Rist august 1944. JUDGMENT STARKE J, I agree with the decision of the learned Judge below. IN THE HIGH COURT OF AUSTRALIA) NEW SOUTH WALES REGISTRY | ) No. 21 of 1944. wILLAn & OKS. ve. LEBER 21st August 1944. JUDGMENT WiuiTads Je: I agree with the judgment of the Chief Justice and have nothing further to add.