Turnbull, Re; John v Pongrass Operations Pty Ltd Ex Parte; [1988] FCA 418

s.188 of the Bankruptcy Act 1966. This authorized one Peter

David Rodgers, a member of the firm of Love and Rodgers, of St. Martin's Tower, 31 Market Street, Sydney, to call a meeting of the creditors of Mr. and Mrs. Turnbull pursuant to Part X of the Bankruptcy Act 1966, and to take control of their property in accordance with that part. A further basis deposed to is that a meeting of creditors pursuant to that authority had been called for and will be held on Thursday, 11 August 1988 at 2.30 p.m. No notices of that meeting have, as yet, been despatched to the

That is the extent of the material touching upon the reasons why the sequestration order made this morning by Deputy Registrar Allen, pursuant to s.31A of the Bankruptcy Act 1966 should be rescinded or discharged. Mr. Backstrom deposes that this morning before the Registrar he told Mr. Allen that the debtor had entered into an arrangement with creditors which required a meeting of creditors to be held and that an adjournment was sought of the petitioning creditor's petition so that the meeting might go ahead. Solicitors for the petitioning creditor informed the Deputy Registrar that their instructions were to proceed with the petition. The material shows that the Deputy Registrar said that there was not sufficient grounds on the material before him to order an adjournment of the petition,

The matter seems to me to be clear. The basis of the application for an adjournment before the Registrar was that authority under s.188 had been signed and that in the near future

a meeting of creditors would be called. In those circumstances,

it was suggested to the Deputy Registrar that it would be a proper exercise of his discretion to adjourn the matter so as to enable the view of the creditors at that meeting to be determined, and that it would be wrong to frustrate whatever their views might ultimately turn out to be by the making of a

In my view, it is clear that a petitioning creditor is entitled to his order if every other circumstance in relation to the making of that order has been satisfied and that he is not to be held out of the benefits of such an order by the fact that the debtor has, a short time before the hearing of the petition, signed an authority under s.188 summoning a meeting of his

creditors pursuant to Part X of the Bankruptcy Act 1966.

There has been no reason advanced why the making of the sequestration order is not otherwise proper. In those circumstances, it seems to me that authority calls for the conclusion that it would be a wrong exercise of the discretion to hold a petitioning creditor out from his order simply because the debtor had signed a section 188 authority a short time before the

In those circumstances, I decline to make any order on the application to me by the debtor and in the circumstances I

dismiss the application with costs to be taxed if not agreed.

| certify that this and the Xx preceding Pages are a true copy of the reasons for judgment herein of His Honour