Re: Carew-Reid, Stephen F & Ex Parte: Buckeridge, Leonard Walter [1997] FCA 1483

Re: Carew-Reid, Stephen F & Ex Parte: Buckeridge, Leonard Walter [1997] FCA 1483

The costs order of the Court of Petty Sessions was not capable of immediate execution prior to registration as a judgment of the Local Court; therefore, the bankruptcy notice was invalid and its non-compliance did not constitute an act of bankruptcy. However, the debtor absented himself within the meaning of s 40(1)(c)(iii) of the Bankruptcy Act 1966 (Cth), and it is not necessary that the sole intent be to defeat or delay creditors. The evidence supported making a sequestration order on this ground.

Jurisdiction
Australia
Judgment Date
19 March 1997
Procedural Posture
Creditor's Petition for Bankruptcy (sequestration Order) / Final Determination; Orders Made
Outcome
Sequestration order made against the debtor; variation of prior costs order; costs to be taxed and paid out of debtor's estate
Legal Topics
['act of Bankruptcy' 'intent to Defeat or Delay Creditors' 'final Judgment or Final Order' 'sequestration Order']
['bankruptcy Law'] ['act of Bankruptcy' 'intent to Defeat or Delay Creditors' 'final Judgment or Final Order' 'sequestration Order']

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Procedural Posture

Creditor's Petition for Bankruptcy (sequestration Order) / Final Determination; Orders Made

Legal Issues

  1. 1 ['Whether a costs order of the Court of Petty Sessions is capable of immediate execution prior to registration as a judgment of the Local Court so as to amount to a final order within the meaning of s 40(1)(g) of the Bankruptcy Act 1966 (Cth)' 'Whether the judgment debtor absented himself within the meaning of s 40(1)(c)(iii)' 'Whether s 40(1)(c)(iii) requires that the sole intent of the judgment debtor in absenting himself be an intent to defeat or delay his creditors']

Ratio Decidendi

The costs order of the Court of Petty Sessions was not capable of immediate execution prior to registration as a judgment of the Local Court; therefore, the bankruptcy notice was invalid and its non-compliance did not constitute an act of bankruptcy. However, the debtor absented himself within the meaning of s 40(1)(c)(iii) of the Bankruptcy Act 1966 (Cth), and it is not necessary that the sole intent be to defeat or delay creditors. The evidence supported making a sequestration order on this ground.

Court Disposition

Sequestration order made against the debtor; variation of prior costs order; costs to be taxed and paid out of debtor's estate

Orders

  • ["The order of the Court dated 14 August 1996 be varied as to item 2 to: 'There be no order as to costs including any reserved costs.'" "Subject to filing of affidavits of continuing debt and registry search, a sequestration order be made against the debtor on ground set out in par 4(b) of amended creditor's...