65. As to the first of these matters reference was made to s.71 of the Legal Practitioner's Act which provides that the Council of the Law Society may refuse to renew a practising certificate or may cancel a practising certificate if the applicant shall have become bankrupt or made an arrangement with creditors and have committed an act essentially amounting to misconduct or have contributed to his bankruptcy. A perusal of s.71 makes it clear that the Legal Practitioner's Act makes no differentiation whatsoever between a legal practitioner becoming a bankrupt on the one hand and entering into a composition with his creditors on the other.

66. Evidence was led for the creditor from Miss Rosemary MacDougal the manager of the Professional Conduct Department of the Law Society for New South Wales for the last four years. Miss MacDougal had been employed by the Law Society of New South Wales for seven years. Miss MacDougal deposed that the mere awareness by the Law Society that a solicitor had become bankrupt had not in her time with the Society precipitated any action against a solicitor at all. Rather action was only taken if other information came to the possession of the Law Society which suggested that there had been some professional misconduct. I accept her evidence completely.

67. In support of the application reference was made to the well known cases of Re Segal; Lensworth Finance Ltd v. Segal and Ward (1975) 9 ALR 154 and Beard v. Prestige Baking Industries Pty Ltd [1981] FCA 97; (1981) 36 ALR 307. It was submitted that I should terminate the composition because the misstatement relating to the Legal Practitioner's Act, the omissions from the statement of affairs and the failure to value the relevant interests were all matters which were material in the sense that they were matters "relevant to and (which) might be likely to affect the making of the decision of the creditors under s.204(1)".

68. For Mr Perkes it was submitted that none of these matters went to the question whether the composition should be terminated under s.242(1)(c) or alternatively having regard to all of the circumstances none of the matters referred to were material, that Mrs McIntyre had been guilty of long delay in commencing the application and in any event the composition having come to an end and the obligations having been already carried out under it, the Court should not exercise its discretion in favour of terminating the composition.

69. Under the Act a creditor may attack a composition under s.222 by moving the Court for an order that the composition is void. An application under s.222 may be either on the ground that the composition does not comply with the requirements of Part X of the Act or has not been accepted in accordance with the Part by the requisite special resolution of a meeting of creditors under s.204. In particular the Court may make an order declaring the composition to be void if one of the grounds set out in s.222(4) of the Act are satisfied namely that the debtor:

(a) has given false or misleading information in

answer to a question put to him with respect

to his conduct, trade dealings, property or

affairs at the meeting of creditors at which

the resolution requiring him to execute the

deed or accepting the composition was passed;

or

(b) has omitted a material particular from the

statement of his affairs under s.195 or

included an incorrect and material particular

in that statement,"

70. Alternatively, an order may be made under s.239 of the Act that a composition be set aside, but such an application must be made within 21 days from the date on which the special resolution accepting the composition was passed. The ground for such an application is set out in s.239(2) as follows:

"If the Court, on such an application, considers

that the terms of the composition are unreasonable

or are not calculated to benefit the creditors

generally or that for any other reason the

composition ought to be set aside, it may make an

order setting it aside ..."

71. Finally, an application may be made under s.242 to terminate a composition, it being necessary before such an application is made that the Court be satisfied of one of the three matters set out in paragraphs (a) to (c) of the subsection. These paragraphs read as follows:

(a) that the debtor, or, if the debtor has died,

the debtor or the person administering the

estate of the debtor, has failed to carry out

or comply with a term of the composition;

(b) that the composition cannot be proceeded with

without injustice or undue delay to the

creditors, the debtor, or, if the debtor has

died, the estate of the debtor; or

(c) that for any other reason the composition

ought to be terminated."

72. The present application seeks to found itself upon s.242(1)(c).

73. For Mr Perkes it was said that the matters put against Mr Perkes as to non-disclosure or false disclosure were matters not relevant to an application under s.242. Rather these were matters relevant to determining whether the composition should be set aside or declared void. It was said that having regard to the certificate of the trustee under s.243A of the Act that the terms of the composition had been carried out by Mr Perkes, such certificate being prima facie evidence of the facts stated in it and there being no other evidence led in opposition to it. There was, it was submitted, no power to terminate the composition it already having been fully carried. Hence it was said it was not either within power or an appropriate exercise of power for the Court to make an order under s.242.

74. A similar submission was considered by Toohey J in Re Doukidis; Ex parte Consolidated Constructions Pty Ltd (26 June 1985 unreported). In that case the application before the Court was for orders under ss.222, 239 and 242. That was a case, such as the present, where no order could be made under s.222(6)(c) although there had, on the facts of the case, been a material omission in the statement of affairs. The application under s.239 was made out of time and his Honour took the view that it was a proper case for an extension of time, the delay being only in the order of two months. Having regard to the terms of the composition and the circumstances in which it was presented to creditors, his Honour was of the view that the composition was not a reasonable one nor one calculated to benefit creditors generally. Accordingly, his Honour made an order under s.239(1) setting aside the composition. It was therefore strictly not necessary to consider the remaining application under s.242. However, apparently the application under that section was fully argued and accordingly his Honour addressed it in the following terms at 16:

"On its face s.242 is concerned with a situation in

which no objection is taken to the composition

itself but it is said that for various reasons,

including failure by the debtor to comply with a

term of the composition, the composition should be

terminated. The use of the expression "terminated"

is not consistent with setting aside a composition;

rather it suggests bringing to an end a composition

because it cannot be carried into final effect. In my

view s.242 is quite inapplicable to the circumstances

relied upon by Consolidated Constructions. I do not

overlook that para.(c) speaks of "any other reason" but

this has to be read conformably with the apparent

purpose of the section. It is not simply s.222 or s.239

in another guise."

75. Although what his Honour there says is dicta, it is of course dicta entitled to great weight. Moreover, with respect to his Honour, I am of the view that what his Honour there says is correct.

76. Where a creditor seeks to attack a composition on the basis that there has been a material non-disclosure or omission from the statement of affairs the application is one properly to be brought under s.222 because the composition has not complied with the provisions of Part X. If the legislature contemplated that matters of omission or false and misleading information could be dealt with in applications made under other sections then the limitation period set out in s.222(6) would presumably have been repeated in the other sections. It would be a curious legislative policy which would forbid an application that a compromise be declared void under s.222 on a ground specified in that section because the final payment had been made under the composition but allow the composition to be either set aside or terminated under s.239 or s.242 on the same grounds but without regard to the fact that the composition had been carried out.

77. Each of the three sections, in my view, has its own place in the Act. Section 222 is properly to be called in aid when there has been some failure to comply properly with the provisions of Part X of the Act including the obligation to submit to the creditors under s.195 of the Act a verified statement of affairs specifying his assets and liabilities with particulars of those assets and estimates of value, particulars of those liabilities and if secured particulars of the security for them.

78. Where the terms of Part X of the Act have been complied with but the composition is unreasonable or not calculated to benefit creditors generally or for some other reason of that kind the composition ought to be set aside, the proper application is under s.239(1). That section assumes the composition to be one complying with Part X but nevertheless one that as a matter of discretion should be set aside. As a matter of fairness s.239 imposes a relatively short limitation period of 21 days although that period is of course capable of extension.

79. Section 242 is not alternative to these sections but is an addition to it. Like s.239 it assumes a valid composition, that is to say one that complies with all the provisions of Part X of the Act; it assumes reasonableness and benefit to the creditors but then proceeds on the basis that something has happened which justifies the Court bringing the composition to an end before it has been fully carried out or complied with by the debtor.

80. In my opinion the present is not a proper case for an order to be made under s.242. Counsel for the creditor did not seek to amend the application to apply to set aside the composition, no doubt properly having regard to the lengthy period of time that had elapsed between Mrs McIntyre having notice of the composition, on the one hand and her applying to the Court, on the other.

81. It is not therefore necessary for me to consider the alternative arguments that if there be power in the Court under s.242 to terminate the composition, the present is not a case where a discretion so to do should be exercised. However if there were power to consider the question under s.242 I would not exercise any discretion in favour of the creditor in the present circumstances. In particular, the composition has been totally complied with, no creditor other than Mrs McIntyre seeks to join in the application, Mrs McIntyre has known of the composition for some years but has taken no steps to have it set aside and having regard to the nature of the omissions and other matters referred to in the statement of affairs they are on balance not of sufficient magnitude or weight to warrant at this late stage exercising the Court's discretion to terminate the composition.

Application to have Composition of Mr Gye declared void

82. In the case of the composition entered into by Mr Gye the final payment under the composition had not been made so that it is open to the creditor to make an application to the Court under s.222 to declare the deed of composition void.

83. In these applications the creditor relies upon the following matters:

* That a false and misleading statement was made in a

circular to creditors

* That the statement of affairs of the debtor

contained no reference to the judgment debt of Mrs

McIntyre nor to the contingent asset representing

his claim against Mrs McIntyre and others

* That the statement of affairs contained no

reference to the debtor's interest in the legal

practice as an asset

* That no notice of the meeting of creditors was

given to Mrs McIntyre.

84. Although in the case of the composition of Mr Gye the final payment had not been made by the trustee to creditors pursuant to the composition, all steps had been taken by Mr Gye to complete the obligations on his part under the composition and the trustee holds moneys for final distribution under it. In these circumstances and for the reasons I have already given in respect of the composition of Mr Perkes, it is my view that the Court has no jurisdiction to terminate the composition under s.242 of the Act so that the only question that arises is whether the composition should be declared void under s.222.

85. The first matter to which attention has been drawn is the statement in the circular to creditors sent under Mr Andrew's signature by letter dated 21 March 1985. That statement is in the following form:

"Mr Gye is now a partner in the legal firm of Gye

and Perkes and as an alternative to becoming a

bankrupt and the probability of losing his

certificate to practice as a self employed

solicitor he proposes a Composition under Part X of

the Bankruptcy Act under which he will pay an

amount of $10,000 per annum from his future income

to a Trustee for the benefit of unsecured creditors."

86. The false and misleading statement was not of course one that appeared under Mr Gye's hand although it seems tolerably clear that something that Mr Gye had said to Mr Andrew precipitated the statement which Mr Andrew circulated to creditors.

87. Having regard to the evidence of Miss MacDougal from the Law Society of New South Wales to which I have already referred, it can be accepted that the statement in the circular was false. Further it can be accepted that in a relevant sense it was false in a material matter in that the statement may well have contributed to creditors accepting the compromise who otherwise might not have accepted it had they believed that Mr Gye might not be in danger from the Law Society if he had become bankrupt.

88. Counsel for the debtor submitted that whether or not the statement was in a relevant sense materially misleading the Court could make no order declaring the compromise to be void because having regard to the terms of s.222(4) the only false or misleading matter that can found an order of the Court declaring the compromise void is one where the debtor has himself given false or misleading information in answer to a question put to him with respect to his conduct, trade dealings, property and affairs at the meeting of creditors at which the compromise was ultimately resolved upon.

89. It would be strange indeed if the Court did not have jurisdiction either to set aside or declare void a settlement which had been induced by some false and misleading statement of the debtor or for that matter the trustee albeit that the false and misleading statement was not of the kind referred to in s.222(4). Certainly it seems to me probable that the Court would have jurisdiction under s.239(1) to set aside the composition if it were shown that it was brought about by reason of a false or misleading statement on the part of the debtor not being of the kind referred to in s.222(4). However, although ultimately I do not think it is necessary to determine the matter, as presently advised I am of the opinion that the Court could declare the compromise void under s.222 in such a case. It seems to me that the composition has not in the relevant sense of the word been accepted by a special resolution of a meeting of creditors when that meeting was called by a notice which itself contained a false and misleading statement or which was accompanied by a document which was to be read together with the notice which itself contained a false and misleading statement, whether that statement was a statement made by the trustee or by the debtor. Cf Re Marra Developments (1976) 1 ACLR 470.

90. The second matter to which attention was drawn was the failure to disclose both the debt of Mrs McIntyre and the claim against her. While it may be said that such a failure would itself be material assuming no other reference to these matters had taken place, it does not on the facts of the present case follow that those present at the meeting at which the compromise was accepted were unaware of them. Mr Andrew gave evidence that at the meeting of creditors at which the compromise was accepted there was a discussion concerning the legal proceedings between the debtor and the creditor. He says, inter alia, that the creditors had indicated that they were not willing to finance the litigation against Mrs McIntyre and that Mr Gye had informed the meeting in such circumstances he could not propose to include any moneys received through litigation among the assets to be vested in the trustee for the benefit of creditors. It seems, certainly so far as regards the asset of the claim against Mrs McIntyre that it was disclosed. It may well be that Mrs McIntyre's judgment debt was not disclosed; the evidence about this was somewhat ambiguous. But for the discretionary matters which I will discuss later this failure to disclose, if failure there was, could be a ground for declaring the settlement void.

91. The suggested failure to disclose the asset of the legal practice is in my view not in the circumstances a material omission. It is clear from a perusal of the circular to creditors and the terms of the composition itself that all creditors were perfectly aware of the fact that Mr Gye was a partner in a legal practice, that practice being referred to in the circular to creditors, but in any event being referred to in the compromise itself where in the course of negotiations considerable discussion took place as to amounts that might become owing to Mr Gye from the legal practice of Gye and Perkes.

92. Finally, while it is true that Mrs McIntyre was given no notice of the meeting of creditors at which the compromise was approved, she was in fact aware of the composition some time prior to 17 May 1985 when her solicitor wrote to Mr Andrew advising him of Mrs McIntyre's judgment. That letter was followed by a further letter of 21 May 1985 in which the solicitors for the creditor indicated that "it could well be that it will be necessary for our client to make application to the court to set aside the composition". In due course Mrs McIntyre's solicitors wrote on 7 June 1985 to Mr Andrew suggesting that the statement of affairs made by Mr Gye was a false affidavit rendering him guilty of an offence under s.263A of the Act and asking the trustee to advise whether he proposed to take any action in respect thereof. On 18 June 1985, and 8 July 1985 Mrs McIntyre's solicitors wrote further to the trustee concerning the litigation between the debtors and the creditor. There was further correspondence on 16 January 1986, 22 January 1987 and 28 January 1987. On 27 April 1987 the trustee wrote to Mrs McIntyre's solicitors and advised them that as no proof of debt had been lodged by Mrs McIntyre and no application had been made to set aside the composition, he proposed to distribute the funds presently held by him.

93. This correspondence makes it clear not only that Mrs McIntyre was aware of the calling of a meeting of creditors prior to such meeting being held but that the defects of which she now complains were defects of which she was aware for some years but in respect of which she took no action at all.

94. The jurisdiction to grant relief under s.222, as also the jurisdiction to terminate a compromise under s.242 is discretionary. It is hard to avoid the impression that the creditor's sudden interest in moving the court to declare the compromise void or otherwise to terminate it after so many years of delay was associated with the fact that the debtors obtained judgments against her in the Supreme Court. It could indeed well be argued that she had an extraneous motive in seeking to move the Court at all. But whatever one may think of her motives a number of factors influence me to exercise my discretion against the present application. These matters are:

1. The long delay on Mrs McIntyre's part in commencing

proceedings.

2. The fact that the debtor has complied with his

obligations under the compromise so that as far as

he is concerned the compromise is complete. There

remains nothing more to be done other than for the

trustee to distribute funds under it.

3. No other creditor has appeared to support the

application.

4. The creditors at the time by special resolution

voted in favour of the compromise, making a

commercial decision well knowing of the litigation

between the creditor and the debtors.

5. There has been no suggestion at all that the public

interest would be served by declaring the

compromise void or terminating it and making a

sequestration order.

6. In the light of the contemporaneous disclosures at

the meeting of creditors and in the circular of Mr

Andrew, the non-disclosures in the statement of

affairs were not material.

95. I have taken into account the fact that the creditor's debt had been stayed and that this situation had effectively continued until the judgment of Brownie J had been entered. I have further taken into account the erroneous statement about the probability of the debtor being struck off the rolls as a solicitor by virtue of becoming bankrupt. It is this matter which has been my greatest concern in coming to the decision which I have reached. Nevertheless it seems to me that when it is weighed against the other matters, justice is best served by refusing to declare void or terminate the composition in accordance with the application.

96. Accordingly I would dismiss the two applications brought by the creditor and in respect of the applications of each of the debtors I would make a declaration declaring that Mrs McIntyre is not entitled to set off the amount payable to her under the judgment obtained by her against each of the debtors on 24 June 1982 in proceedings of the Supreme Court of New South Wales No 14411 of 1984 against the amount payable by her under the judgment entered in favour of each of the debtors against her and others on 12 September 1988.

97. Since dictating this judgment counsel for the debtors submitted a lengthy written submission pursuant to leave so to do. Accordingly I allowed counsel for Mrs McIntyre to furnish written submissions in reply notwithstanding that the matter had been fully argued by him. I have carefully considered the matters dealt with in both submissions and except in respect of one matter they do not affect in any way the views which I have expressed above.

98. One matter raised by counsel for Mrs McIntyre, however, has given me some concern. It is submitted that as her judgment against the debtors was stayed by the Supreme Court of New South Wales pending the hearing of the cross-claim against her husband and herself, until that stay was lifted she was unable to submit to the trustee a proof of debt both because the debt having been stayed it was not provable and because to do so would involve a contempt of the Supreme Court. I should say that if the debt were not provable in the compositions at the time they were entered into it would have followed in my view for that reason alone that there would have been no set-off against the amounts which Mrs McIntyre ultimately was found to owe the debtors. It would also follow that the compositions would not operate to release the debtors from the debt owing to Mrs McIntyre pursuant to s.240 of the Act.

99. It will be recalled that by virtue of s.243(1) of the Act the provisions inter alia of s.82 of the Act dealing with provable debts apply subject to such modifications as are prescribed by the rules in relation to a composition under Part X of the Act. Rule 83 of the Bankruptcy Rules prescribes the modifications to be made to s.82. The consequence is, that so far as compositions under Part X of the Act are concerned s.82 reads as follows:

"(1) Subject to this Division, all debts and

liabilities to which a bankrupt was subject at

the date of the bankruptcy are provable in his

bankruptcy ...

(4) The trustee shall make an estimate of the

value of a debt or liability provable in the

bankruptcy which, by reason of its being

subject to a contingency, or for any other

reason, does not bear a certain value ...

(6) If the Court finds that the value of the

debt or liability cannot be fairly estimated,

the debt or liability shall be deemed not to

be provable in the bankruptcy ...

(8) In this section, liability includes -

(a) compensation for work or labour done;

and

(b) an express or implied engagement,

agreement or undertaking to pay, or

capable of resulting in the payment of,

money or money's worth, whether the

payment is -

(i) in respect of amount - fixed or

unliquidated; or

(ii) in respect to the manner of

valuation - capable of being

ascertained by fixed rules or only

as a matter of opinion."

100. It may be noted that the modifications removed from s.82(1) the words "present or future certain or contingent" governing the words all debts and liabilities. It is not clear to me why the modification brought by r.83 was made but it may have the effect of excluding contingent debts from proof. Prima facie a debt "is a sum of money which is now payable or will become payable in the future by reason of a present obligation, debitum in praesenti, solvendum in futuro". See per Rich J in Mack v. Commissioner of Stamp Duties [1920] HCA 76; (1920) 28 CLR 373 citing Lindley LJ in Webb v. Stenton (1883) 11 QBD 518 at 527. While prima facie the express removal of the words set out above from s.82 would appear to have the effect of rendering a future debt not provable under a composition, no submission was put by either party that a different conclusion should be drawn as to the admission to proof of a judgment debt execution whereof had been stayed, depending upon whether that question fell to be decided in a bankruptcy or by the trustee under a Part X composition. While it is difficult to understand the purpose of the modifications to s.82 as applicable to Part X compositions it seems having regard to the provisions of ss.82(4) and 82(8)(b), as so modified, not easy to argue that debts owing at the time of the compromise, albeit payable in the future, are excluded from proof by a trustee under a Part X composition. This being so it seems to me that s.82(1) as modified still permits proof of all debts, be they present or future, just as the section in its unmodified form does.

101. The order staying Mrs McIntyre's judgment was not in evidence before me. It is described in affidavits of each of the debtors as being a stay of execution and a similar description is used in the judgment of Brownie J of the Supreme Court of New South Wales. There is no reference at all to the stay in any affidavit filed on behalf of Mrs McIntyre so that I am able to assume that the description of the stay given by the debtors is correct. Under the rules of the Supreme Court of New South Wales a stay may be of execution alone or may under Part 13 r.2 be a stay not only of execution but also of other enforcement of a judgment debt pending determination of a cross-claim. Under Part 44 r.5 the Court is empowered to stay execution of a judgment or order on terms. It would seem that the Court would also have inherent power to grant a stay: Ellis v. Scott (1964) 2 All ER 987.

102. Where a stay ordered is a stay of execution only, the stay does not prevent the judgment creditor from enforcing any rights which he has independently of the judgment so that in Clifton Securities, Ltd v. Huntley & Ors (1948) 2 All ER 283 judgment in favour of a lessor for possession of leased premises which had been stayed did not preclude the lessor from exercising his rights to obtain possession by peaceful means. As was said by Denning J, as his Lordship then was at p 284:

"A stay of execution only prevents the plaintiffs

from putting into operation the machinery of law -

the legal processes of warrants of execution and so

forth - in order to regain possession. It does not

take away any other rights which they have. It

does not prevent their exercising any right or

remedy which they have apart from the process of

the court."

103. By analogy it seems to me that a stay of execution not operating also as a stay of any other mode of enforcement of a judgment operates to prevent the person having obtained that judgment using the processes of the court to levy execution on it. It does however do no more. Cf. Berliner Industriebank Aktiengesellschaft v. Jost (1971) 2 All ER 1513.

104. The stay in the present case was not perpetual, it was only a stay to continue for so long as the cross-claim of the debtors had not been heard and decided. Hence it seems clear that the effect of the stay was to leave a debt owing between the debtors to Mrs McIntyre but to defer the point of time at which payment of that debt could be required. So seen the effect of the stay was to reduce the debt to a debitum in praesenti solvendum in futuro just as the moratorium legislation did in Re Klowss (1933) 6 ABC 89. In that case the question arose whether an amount due under a hire purchase agreement, enforcement of which was suspended by reason of the New South Wales Moratorium Acts, was a debt within the meaning of the Bankruptcy Acts. Holding that the amount was a debt Lukin J said at p 93:

"This contention treats an existing debt as having

been fully extinguished by a state law which merely

restricts its present enforcement in a particular

way. The debt still remains and is a debt provable

under the Bankruptcy Act."

105. A similar result was reached in Cain v. Whyte [1932] HCA 6; (1933) 48 CLR 639. In that case after a judgment had been obtained by the respondent but before the judgment was entered the appellant obtained an order under s.24 of the Financial Emergency Relief Extension Act 1932 (Qld) that the payment of the sum be deferred for a time stipulated in the order. The question arose whether the debt could found a petition. It was argued that as payment of the debt had been stayed it ceased to be a liquidated sum payable either immediately or at some future time, the latter because power existed in the Supreme Court to make further orders of deferment of the debt and also because the Governor in Council was vested with power to further defer the stipulated time. It was held that there was a present debt, albeit one payable in the future, which could ground the petition.

106. It is true, as was submitted for Mrs McIntyre that neither case involved a judgment debt which was subject to a stay of execution but Cain v. Whyte did involve a debt the payment of which was stayed by order of a court and is somewhat analogous to the class of case where execution of the debt has been stayed. Some support for this view can also be obtained from s.41(3)(b) of the Act which prevents the issue of a bankruptcy notice by a judgment creditor in circumstances where execution of the judgment or order to which it relates has been stayed. By s.41(3) the legislature has made specific provision which recognises that a debtor creditor relationship exists between the debtor and the person who seeks to have issued a bankruptcy notice and directs specific attention to the effect of a stay. It may be said that by implication the legislature has not sought, where all that is involved is proof of a debt, that is to say participation in the fund divisible by the trustee in bankruptcy among the creditors, to exclude a judgment creditor from proof where a stay of judgment has been obtained. Indeed, so to do might bring about grave injustice because the fund may have been distributed before the judgment creditor execution of whose judgment has been stayed can finally prove for the debt.

107. Counsel for Mrs McIntyre pointed to the decision of Re John Kongonis (1962-63) 19 ABC 96 where it was held that a debt which was statute barred under a limitation law which operated to bar the remedy but not the right could not be proved in the bankruptcy. However such a class of case is quite different from the class of case where execution of a debt has been deferred for a limited time. This is so because the effect of the statute of limitations is not merely to defer the point of time at which the debt may be enforced but to extinguish for ever all remedies which the creditor has to enforce the debt (unless the creditor has a lien). As Clyne J said in that case at p 99:

"A debt not enforceable in law because it is

statute-barred cannot be proved. It is not

effective in law."

108. It is said for counsel for Mrs McIntyre that the object and rationale for the stay granted in the present case was to prevent further steps being taken by her until such time as the cross-claim was determined and that to have proved in the composition would have rendered Mrs McIntyre liable to contempt proceedings. In support of this submission reference is made to Beecham (Australia) Pty Ltd v. Roque Pty Ltd (1987) 11 NSWLR 1. That case however is of no assistance. It held that where an injunction had been granted by the Supreme Court of New South Wales restraining the appellant from further prosecuting or taking any further steps in proceedings which had been commenced in the Supreme Court of Victoria, it was contempt of that order not to consent to an adjournment of the Victorian proceedings. The critical question, if any question of contempt arises, is whether the act involved, in the present case proving the debt in bankruptcy, is as a matter of construction of the stay order, in contempt of it. For the reasons I have already given I do not believe in the present case that for Mrs McIntyre to prove in the composition would have been a contempt of the Supreme Court of New South Wales having regard to the stay order in contemplation at the time the composition was entered into.

109. Accordingly I am of the view that there was no impediment to Mrs McIntyre proving her debt in the composition and that at least in the case of the composition of Mr Gye she may still do so. Whether, had she proved in the compositions at the time they were entered into, it would have been prudent for the trustee to wait until the stay was lifted before distributing the composition fund is not a matter that presently calls for decision.

110. I will hear counsel as to the form of the declarations and for this purpose I would direct that the debtors prepare and file short minutes of order on or before a date to be fixed and that the matter be relisted thereafter to settle the form of orders accordingly.