Carney, Bernard Dennis & anor v Ampol Petroleum (Queensland) Pty ltd [1983] FCA 392

Carney, Bernard Dennis & anor v Ampol Petroleum (Queensland) Pty ltd [1983] FCA 392

The court found the debtors did not intend to suspend payment to their trade creditors generally and continued to trade and pay their creditors; therefore, the requirements of s.40(1)(h) of the Bankruptcy Act 1966 were not satisfied and the petition must be dismissed.

Parties
Debtors: Bernard Dennis Carney and Lynette Rose Carney; Petitioning Creditor: Ampol Petroleum (Queensland) Pty Limited
Jurisdiction
Australia
Judgment Date
14 December 1983
Procedural Posture
Bankruptcy Sequestration Petition / Judgment and Orders After Petition Hearing
Outcome
Petition dismissed
Legal Topics
Act of Bankruptcy Under S.40(1)(h), Notice of Suspension of Payment, Sequestration Order
Bankruptcy Act of Bankruptcy Under S.40(1)(h) Notice of Suspension of Payment Sequestration Order

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Parties

Bernard Dennis Carney and Lynette Rose Carney

Debtors

Ampol Petroleum (Queensland) Pty Limited

Petitioning Creditor

Procedural Posture

Bankruptcy Sequestration Petition / Judgment and Orders After Petition Hearing

Legal Issues

  1. 1 Whether an act of bankruptcy within s.40(1)(h) of the Bankruptcy Act 1966 was committed by the debtors

Ratio Decidendi

The court found the debtors did not intend to suspend payment to their trade creditors generally and continued to trade and pay their creditors; therefore, the requirements of s.40(1)(h) of the Bankruptcy Act 1966 were not satisfied and the petition must be dismissed.

Court Disposition

Petition dismissed

Orders

  • The petition is dismissed.
  • The debtors pay to the petitioning creditor its costs of and incidental to the adjournment of these proceedings on 5 December 1983; otherwise the petitioning creditor pay to the debtors their costs of and incidental to these proceedings, in each case the costs to be taxed and set-off.