Farrow Mortgage Services Pty Ltd (in liq) v Stone, George Barry Everett [1998] FCA 884

Farrow Mortgage Services Pty Ltd (in liq) v Stone, George Barry Everett [1998] FCA 884

The hearing of the bankruptcy petition should be deferred because the Debtor had reasonable and arguable grounds of appeal concerning the rejection of valuation and marketing evidence relevant to the Petitioner's exercise of its mortgagee power of sale; however, the adjournment should be conditioned to protect the Petitioner, including by requiring taxation and timely payment of costs and allowing restoration of the matter if the appeal is not prosecuted diligently or costs are not paid.

Jurisdiction
Australia
Judgment Date
13 July 1998
Procedural Posture
Bankruptcy Petition / Adjournment/standover of Petition Pending the Debtor's Appeal to the New South Wales Court of Appeal
Outcome
The bankruptcy petition was stood over for directions on 9 October 1998, with costs and restoration conditions imposed.
Legal Topics
['adjournment of Bankruptcy Petition' 'appeal Pending Against Judgment Debt' 'mortgagee Power of Sale' 'costs and Taxation of Costs']
['bankruptcy' 'civil Procedure' 'mortgage Law'] ['adjournment of Bankruptcy Petition' 'appeal Pending Against Judgment Debt' 'mortgagee Power of Sale' 'costs and Taxation of Costs']

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Procedural Posture

Bankruptcy Petition / Adjournment/standover of Petition Pending the Debtor's Appeal to the New South Wales Court of Appeal

Legal Issues

  1. 1 ['Whether the bankruptcy petition should be adjourned or deferred because the judgment debt on which it was founded was subject to an appeal.' "Whether the Debtor had reasonable and arguable grounds of appeal concerning alleged lack of good faith or breach of duty in the Petitioner's exercise of a mortgagee's power of sale." 'What conditions should attach to any further adjournment of the petition to avoid injustice to the Petitioner.']

Ratio Decidendi

The hearing of the bankruptcy petition should be deferred because the Debtor had reasonable and arguable grounds of appeal concerning the rejection of valuation and marketing evidence relevant to the Petitioner's exercise of its mortgagee power of sale; however, the adjournment should be conditioned to protect the Petitioner, including by requiring taxation and timely payment of costs and allowing restoration of the matter if the appeal is not prosecuted diligently or costs are not paid.

Court Disposition

The bankruptcy petition was stood over for directions on 9 October 1998, with costs and restoration conditions imposed.

Orders

  • ['The petition be stood over for directions on 9 October 1998.' 'The Debtor pay the costs of today.' 'Leave to the Petitioner to tax forthwith the costs orders made against the Debtor in the Bankruptcy proceedings.' 'If the payment of those costs is not satisfied within 14 days of service of the certificate of...