Re Vincent, Clifton George Ex Parte State Bank of NSW [1996] FCA 285

Re Vincent, Clifton George Ex Parte State Bank of NSW [1996] FCA 285

The hearing of the creditor's petition should be adjourned for a limited period subject to undertaking by the debtor to seek expedition of his appeal because the appeal raises matters not so hopeless as to be classed as frivolous or doomed to fail, and it is significant to adjourn in view of bankruptcy's consequences.

Jurisdiction
Australia
Judgment Date
10 April 1996
Procedural Posture
Bankruptcy Petition / Application for Adjournment of Creditor's Petition Hearing
Outcome
Adjournment granted for up to two months; costs order in favour of creditor for the day's hearing.
Legal Topics
['adjournment of Bankruptcy Proceedings' 'enforcement of Judgments' 'duties of Mortgagee' 'legal Costs Indemnity' 'substituted Service']
['bankruptcy' 'contracts'] ['adjournment of Bankruptcy Proceedings' 'enforcement of Judgments' 'duties of Mortgagee' 'legal Costs Indemnity' 'substituted Service']

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Procedural Posture

Bankruptcy Petition / Application for Adjournment of Creditor's Petition Hearing

Legal Issues

  1. 1 ['Whether the bankruptcy petition hearing should be adjourned pending appeal against judgment' "Whether the debtor's appeal amounts to a frivolous or insubstantial case" 'Proper construction of indemnity for legal costs in facility agreement' 'Test for duties of mortgagee in sale of secured properties' 'Effect of possible creditor prejudice if adjournment granted']

Ratio Decidendi

The hearing of the creditor's petition should be adjourned for a limited period subject to undertaking by the debtor to seek expedition of his appeal because the appeal raises matters not so hopeless as to be classed as frivolous or doomed to fail, and it is significant to adjourn in view of bankruptcy's consequences.

Court Disposition

Adjournment granted for up to two months; costs order in favour of creditor for the day's hearing.

Orders

  • ["Hearing of the creditor's petition adjourned for no more than two months subject to undertaking by debtor to lodge a motion for expedition and prosecute the appeal diligently." 'Debtor to provide undertaking to file expedition application in Court of Appeal by 17 April.' "Respondent (debtor) to pay petitioning...