Rigg v Commonwealth Bank of Australia

REASONS FOR JUDGMENT 1 On 1 February 2000 Acting Justice Brownie in the Supreme Court of New South Wales directed the entry of judgment in favour of the Commonwealth Bank of Australia against Mr and Mrs Rigg in the sum of $1,040,987.79 after a contested hearing. On 28 February an appeal against that decision was lodged. The Supreme Court has made an order expediting the hearing of that appeal and it is currently fixed for hearing on 18 July 2000. 2 I currently have before me an application under s 41(6A) of the Bankruptcy Act 1966(Cth) for an order extending time for compliance with the bankruptcy notice until a date after the hearing of that appeal. 3 On 6 March 2000 an application was made to Meagher JA for a stay of the proceedings in the Supreme Court pending the resolution of that appeal. His Honour refused that application and in the course of doing so made the following remarks: "There is no evidence before me as to the assets or liabilities of either Mr Rigg or Mrs Rigg. There is no offer to repay the current debt in favour of the Commonwealth Bank, which in argument has been conceded to be at least the judgment sum I mentioned minus $150,000. There is no evidence of any defence to the Bank's claim. There is no evidence of any valid cross-action, and there is no evidence which comes even close to satisfying me that there is a reasonable chance of success in the appeal. I might add that there has been no offer by the claimants to pay into court forthwith or indeed at any time, any sum of the money which it is in effect conceded they owe to the bank. In these circumstances, I am of the view that the notice of motion filed on behalf of Mr and Mrs Rigg should be dismissed with costs." 4 The grounds on which an extension of time for compliance with the notice is sought are firstly the pending appeal, secondly the fact of its expedition, thirdly that it is to be heard in the reasonably near future, and fourthly that there is no prejudice to the Bank from the granting of an extension of time. 5 I considered the authorities in this area in Warner v Frost [1999] FCA 830 and there is no point in recapitulating what I there said. In the present case, there was no evidence before the Supreme Court, and there is no evidence before me, as to the nature of the assets and liabilities of Mr and Mrs Rigg. In Warner I came to the view that the mere fact of a pending appeal did not provide a sufficient foundation for the granting of an extension of time within which to comply with a bankruptcy notice, especially where the court in which the judgment was pronounced had refused an application for a stay of proceedings. That is the case here. 6 Accordingly it seems to me that whilst an act of bankruptcy is a serious matter, if a sequestration order is to be ultimately made, it is better that the relevant act of bankruptcy occurs earlier rather than later. The Bank has offered an undertaking not to present a petition seeking a sequestration order until judgment has been delivered by the Court of Appeal with respect to the pending appeal. I would therefore refuse the application for an extension of time. 7 During the course of his submissions in reply Mr Fitzgibbon, counsel for the applicant, sought to draw attention to a matter which came to his attention only on Friday last. He was understandably and correctly circumspect in what he put with respect to that new matter. Taking it at its highest, the new matter might demonstrate some new evidence which could contradict the evidence of one or two of the witnesses given at the hearing before Brownie JA. 8 That may indicate that fresh grounds of appeal would be sought to be agitated in the Supreme Court beyond the existing grounds. I am simply not in a position to make any assessment as to whether or not this evidence, assuming it to be fresh evidence, has the significance attributed to it by Mr Fitzgibbon or indeed whether it is of any significance at all. I therefore do not think that the existence of this matter indicates or requires a conclusion different from that which I have otherwise reached. 9 I therefore dismiss the application for an extension of time for compliance with the bankruptcy notice. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.