O'HALLORAN v THOMAS & FAMILY PTY LTD [1996] NSWCA 408

O'HALLORAN v THOMAS & FAMILY PTY LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA 21 October 1996

[1996] NSWCA 408

Handley JA. In this matter Miss McColl SC moves on behalf of the appellant, James Francis O' Halloran, for a stay of execution on the judgment entered by Mr Justice Giles in the Commercial Division against her client for $789,750 including pre-judgment interest.

The notice of appeal was filed within time but did not include grounds of appeal directed to the judgment entered in favour of R T Thomas & Family Pty Ltd.

The notice of motion for a stay was not taken out until 24 September 1996 and has come on for hearing today for the first time.

Because of the appellant's delays since the entry of judgment against him, the judgment creditor was able to obtain and serve a bankruptcy notice.

The time for compliance with that notice expired without the appellant taking any effective steps to avoid committing an act of bankruptcy.

A bankruptcy petition seeking a sequestration order against the estate of the appellant is listed before the Federal Court on Friday 25 October. The making of the sequestration order is opposed and I was informed that there were no supporting or opposing creditors.

It was not in dispute that any stay of proceedings granted by this Court would not be binding on the Federal Court which could, notwithstanding such a stay, proceed if it saw fit to make a sequestration order against the appellant.

On the other hand it was also accepted that the existence of a stay granted by this Court would be a relevant factor in the exercise by the Federal Court of its discretion and, accordingly, there would be utility in this Court considering whether or not a stay should be granted.

The matter had proceeded some considerable distance before me before Mr Angyal, who appeared for the judgment creditor, received instructions to explore the prospects of obtaining satisfactory security from the claimant over assets disclosed by him in the form of proved claims in the bankrupt estates of Gerry Lindfield and George Constantine and a debt owed to him by JID & LC Nominees Pty Ltd said to be the trustee of his family trust.