Re: Vaccaro; Ex Parte: Florio[1987] FCA 824

JUDGMENT No. 2o Steud 2c

IN THE FEDERAL COURT OF AUSTRALIA |)

GENERAL, DIVISION : 7) No. W 468 of 1986 BANKRUPTCY DISTRICT OF ) Part X ) )

NEW SOUTH WALES AND

AUSTRALIAN CAPITAL TERRITORY

Re: Constance VACCARO j Debtor Ex parte: Josephine Angelina FLORIO Applicant : And: John Howard MANN Respondent

CORAM: HEinfeld J.

DATE: 16 October 1987

PLACE: Sydney

EX—-TEMPORE JUDGMENT

The matters before the court are applications by Josephine Angelina Florio, the daughter of the debtor Constance Vaccaro, for injunctive and other relief against or concerning the stewardship by John Howard Mann, the respondent, of the assets and property of the debtor under a purported deed of arrangement dated 29 December 1986, and an application by the respondent, Mr. Mann, for a declaration that the said deed of arrangement is invalid and that the estate of Mrs. Vaccaro be

sequestrated.

There is also foreshadowed an application by Mr. Mann under _ section 190(3) of the Bankruptcy Act 1966 (the Act) for the leave of the court

to sell the property which was the subject of this dispute.

The matter was first in the list on Tuesday, 13 October 1987, when immediate orders were sought for the voiding, either by way of declaration or acknowledgement following upon findings of fact, of the purported deed of arrangement and for injunctive relief which would prevent the respondent, Mr. Mann, in 'particular, from pursuing a

particular sale to a man named Figtree of the property in question.

When the matter was in the list on Tuesday, 13 October 1987, by way of a mention or callover, I declined to deal with the matter on the basis of the very short time that was then available to become familiar with the facts of the matter, and stood all the applications over to today. In the meantime, asking for and receiving mutual undertakings by the

parties in the form which I shall indicate in a moment are still on

foot.

The proceedings came on today really on the basis of a final hearing of

all or most of the matters in dispute under these applications.

The estimate of two hours that was put on the matter was wholly unrealistic, and it now being 5 to 5 on Friday afternoon it is not possible to take these proceedings any further today. The affidavit evidence on both sides of the record has been read, and counsel for both

parties now wish to cross-examine certain of the other side's witnesses.

The dispute in this matter is very broad and is multifaceted. It eventuates, though perhaps due to a misunderstanding that, in substance, Mrs. Florio is challenging the right of Mr. Mann to be heard in these proceedings at all and certainly to bring his own application to the

court. Mrs. Florio certainly challenges the basis upon which the

application is said to he before the court, namely, under section 222 of

the Act.

There is also reliance by the respondent on sections 188 and 189 of the Act. The urgency of this matter is brought about by the assertion on the part of the respondent that the sale of this property to Mr. Figtree must be available or secured by not later than 30 October 1987, on which date it is asserted Mr Figtree's financier will withdraw its financial support. . |

Doubt is cast upon the accuracy of this assertion by the applicant. It

might even be said that the applicant has gone so far as to submit that

I should not pay any or much attention to this time limit because it is,

so the submission goes, unreliable if not quite misconceived and Misleading. I am not in a position to rule on the matter, and I think I

should make an effort to resolve the issue before 30 October 1987.

If it should turn out that this date is fictitious or an attempt to bring pressure on the applicant and/or the debtor and, for that matter, the court, then, no doubt, that will be the subject of submissions at an appropriate time. For the moment, the matter is before me part heard and in a state where it is not possible to make even preliminary

findings of law, still less any relevant findings of fact.

For those reasons, I propose to stand the matter over part heard to 10.15 on Monday, 26 October 1987, on which day the matter will have to be completed. There has been an indication that the applicant and the debtor are desired to be cross-examined, as well as Mr. Mann and some several five or other number of creditors who have been waiting today to be cross-examined on the affidavits which have been filed from then in

these proceedings.

The undertakings to which I referred earlier. are undertakings which I have again sought from counsel for the parties today, and they have been given. On the part of the applicant, there is an undertaking in the usual form concerning damages, that is, that she will pay such damages as the court may in due course order in the event that the application

for injunctive and other relief has caused damage and fails.

On the part of the respondent, the undertaking is that up until the

completion of the proceedings on Monday, 26 October 1987, or further

order or undertaking that:

(a) he will by himself, his servants or agents, not sell, offer for sale, or otherwise deal with the property of the debtor, provided that the receipt of inguiries from prospective purchasers or discussions with such purchasers' shall not

constitute a breach of the undertaking, and

(b) he will not by himself, his servants and agents, take any step in the performanace of his duties under an instrument called a deed of arrangement between the debtor and the trustee dated 29

December 1986.

The proviso to which I referred under (a) is also applicable to the

undertaking in (b). Costs are reserved.