Case: Totev v Sfar [2006] FCA 470 ; (2006) 230 ALR 236 
Outcome: followed
for ICM referred me to Totev v Sfar [2006] FCA 470 ; (2006) 230 ALR 236 at [37] - [44] ( Totev ) where Allsop J, when a judge of this Court, discussed, inter alia, the matters that a debtor must prove in order to establish "other sufficient cause" within s 52(2)(b) of the Bankruptcy Act . An appeal relating to that decision, Totev v Sfar [2008] FCAFC 35 ; (2008) 167 FCR 193 , is not of present relevance. Importantly, counsel submitted that I could not be satisfied that the claim made by Mr Young in the 2007 DC Proceeding was likely to be determined at any time in the near future. The fact was that Mr Young wished to file a significantly amended pleading in the 2007 DC Proceeding and counsel for ICM said that this would prompt a request for particulars. His submission was that allowing for amendment of the pleadings, the supply of particulars, a revised discovery in the light of amended pleadings, and preparation for trial, the 2007 DC Proceeding, assuming against ICM that it would succeed, could not be regarded as being likely to yield funds for the payment of Mr Young's creditors in anything like the near future so to overcome his present insolvency. Time did not permit the hearing to be concluded on 8 July 2009 and the proceeding was stood over to 2.00 pm on Wednesday 15 July 2009. There was a dramatic change at the resumed hearing on 15 July 2009. Mr J T Svehla of counsel had come to represent Mr Young (without any instructing solicitor). He applied for an adjournment. Mr Svehla said that he had come into the matter only recently and that he wished to achieve the following steps in the interests of Mr Young, both in the Federal Court and elsewhere: In order to establish "other sufficient cause" (or, of course, ability to pay debts) Mr Young must establish that his claim against ICM is likely to succeed, not merely that he has an arguable claim: see the numerous cases listed in McQuade and Gronow, McDonald Henry and Meek's Australian Bankruptcy Law and Practice (6 th ed, Thomson Lawbook Co, as at 7 October 2009) at [52.2.22], esp Totev at [37]-[44] . The test is more stringent and demanding than that which applies under s 41(7) of the Bankruptcy Act , which relates to the extension of time for compliance with a bankruptcy notice where a debtor has applied for an order setting aside that notice on the ground that the debtor has a counter-claim, set-off or cross demand of the kind referred to in s 40(1)(g) of that Act. As Allsop J observed in Totev at [45], the context is different under s 52(2)(b). The authorities referred to by his Honour show that the debtor's claim against the petitioning creditor must be one which is "likely to succeed". For the reasons below and in the Earlier Reasons for Judgment, I am not satisfied that Mr Young's claim is likely to succeed. The terms of the assignment of 11 December 2007 were previously noted. In my Earlier Reasons for Judgment I held that assignment invalid for the reasons there set out. I will not summarise those reasons beyond saying that I held the purported assignment to be of a bare cause of action which the parties accepted could be sustained only if Mr Young had a "genuine commercial interest" in taking the assignment and enforcing it for his own benefit (at [122]). AAC and Mr Young have recently entered into the three deeds of assignment referred to below apparently in an attempt to overcome the problem referred to. Mr Young now seeks to support the assignment of the causes of action as being ancillary to and supportive of an assignment of property as well as on the "genuine commercial interest" ground. The three deeds were executed after the First Sequestration Proceeding was commenced by ICM on 20 March 2009 and after this present sequestration proceeding was commenced by ICM on 5 June 2009.