CATCHWORDS

PRACTICE - stay - application for stay of execution pending an appeal - whether the orders in question could be stayed - consideration of prospects of success of appeal

Bankruptcy Act 1966 s 139ZQ

Bunnings Forest Products Proprietary Limited v Bullen (1994) 54 FCR 342 Foll

Re Sol Theo Ex parte: The Abovenamed and The Official Trustee in Bankruptcy

No QB 1422 of 1990

Kiefel J Brisbane 2 September 1996

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION

BANKRUPTCY DISTRICT OF THE

STATE OF QUEENSLAND

No QB 1422 of 1990

RE:

                                    SOL THEO

EX PARTE:

                                    SOL THEO

Applicant

AND:

                                    OFFICIAL TRUSTEE IN BANKRUPTCY

Respondent

JUDGE MAKING ORDER:            Kiefel J

DATE OF ORDER:               2 September 1996

WHERE MADE:                               Brisbane

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1.         The application for stay is dismissed.

2.         The applicant pay the costs of the Official Trustee and of the Trustees for Sale of and incidental to the motion, to be taxed.

Note:    Settlement and Entry of Orders is dealt with in Rule 124 of the Bankruptcy Act.

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION

BANKRUPTCY DISTRICT OF THE

STATE OF QUEENSLAND

No QB 1422 of 1990

RE:

                                    SOL THEO

EX PARTE:

                                    SOL THEO

Applicant

AND:

                                    OFFICIAL TRUSTEE IN BANKRUPTCY

Respondent

CORAM:                                           Kiefel J

DATE:                                                2 September 1996

PLACE:                                              Brisbane

REASONS FOR JUDGMENT

“EX TEMPORE”

            Mr Theo applies for a stay of the orders made by Heerey J on 1 August 1996.  It is necessary to refer to a little background to that decision.  On 24 August 1995, Cooper J heard proceedings brought by Mr Theo to set aside notices issued by the Official Receiver under s 139ZQ of the Bankruptcy Act 1966 with respect to transactions concerning the two landholdings now in question.  Mr Theo had a measure of success in that the notices were set aside, but this was on the ground that requirements as to valuations had not been complied with. 

            His Honour made detailed findings of fact as to the transfer of Mr Theo's interest in the property to Mrs Theo, and to Mr Theo's contention that he held his interest only as trustee.  His Honour found that that was not correct.  An appeal from

his Honour's orders was dismissed on 23 November 1995.  Whilst it might be thought only the costs order made by Cooper J affected Mr Theo, the Full Court heard argument as to the findings of fact, and, in the result, held that no ground had been shown to overturn them.  I am told that an application for special leave to the High Court is yet to be determined, but it seems to me that the prospects of leave being granted are negligible. 

            On the application brought to Heerey J, his Honour held that the parties were issue estopped and made declarations giving effect to the findings of Cooper J.  An order made in consequence was that trustees for sale be appointed.  Whilst declaratory orders cannot be stayed (see Bunnings Forest Products Proprietary Limited v Bullen (1994) 54 FCR 342), the following orders here made might, if that is shown to be necessary.

            The properties in question are Mr and Mrs Theo's residence and a tenanted property.  At least with respect to the taking of steps to sell their house property, a stay could be considered, depending however upon Mr Theo's prospects of successfully appealing the decision of Heerey J.  Mr Theo's main point was that the order made was with respect to the whole property but that it had not been determined that the trustees were so entitled.  This misunderstands the nature of the order, which is one to facilitate a sale, but which does not determine that the co-owner has no interest and, insofar as Mrs Theo or any other person made improvements to the properties after the transfer which has been held void, his Honour's order recognises that they might apply to have such a question determined.

            From Mr Theo’s oral submissions I took it that he disputes the factual correctness of Cooper J's judgment.  As I have said, however, I do not consider it to be at all likely that these findings will be interfered with.  Nor does there appear to me to be reason to doubt Heerey J's application of them.  In these circumstances, the application for stay will be dismissed with costs.

                        I certify that this and the preceding two pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.

                        Associate

                        Date: 2 September 1996

The applicant:                                       In Person

Counsel for the respondent:                   Mr P Hack

Solicitors for the respondent:     Australian Government Solicitor

Solicitors for the Trustees for

Sale:                                                     Bennett & Philp

Date of Hearing:                                2 September 1996

Place of Hearing:                               Brisbane

Place of Judgment:                            Brisbane

Date of Judgment:                             2 September 1996