Re Nolan, Desmond Gerard Ex parte Westpac Banking Corporation [1996] FCA 873

Re Nolan, Desmond Gerard Ex parte Westpac Banking Corporation [1996] FCA 873

The petition was further amended because the omission to state the Bank's securities and estimate their value was due to inadvertence, the Bank did not pretend to be an unsecured creditor, the petition disclosed mortgage liabilities suggesting securities were held, and neither the debtor nor creditors showed any disadvantage caused by the omission beyond an expectation of possible payment. Refusing amendment would produce the harsh result of denying the Bank securities taken for consideration, while any prejudice to the Trustee from issuing the s 44(5) notice could be remedied by costs.

Jurisdiction
Australia
Judgment Date
04 October 1996
Procedural Posture
Bankruptcy / Application After Sequestration Order to Further Amend Creditor's Petition and Set Aside Trustee's Request Under S 44(5) Bankruptcy Act 1966
Outcome
Creditor's petition further amended; re-service dispensed with; Trustee's s 44(5) request set aside; Westpac ordered to pay the Trustee's costs on a solicitor and client basis; no other costs orders made.
Legal Topics
["amendment of Creditor's Petition" 'secured Creditor' 'sequestration Order' 'surrender of Security' 'inadvertence of Solicitor' 'costs']
['bankruptcy'] ["amendment of Creditor's Petition" 'secured Creditor' 'sequestration Order' 'surrender of Security' 'inadvertence of Solicitor' 'costs']

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Procedural Posture

Bankruptcy / Application After Sequestration Order to Further Amend Creditor's Petition and Set Aside Trustee's Request Under S 44(5) Bankruptcy Act 1966

Legal Issues

  1. 1 ["Whether the creditor's petition could be amended after a sequestration order had been made to disclose securities held by the petitioning creditor and their estimated value." 'Whether the Bank had presented the petition as an unsecured creditor so as to require surrender of its securities under s 44(5) Bankruptcy Act 1966.' 'Whether inadvertence in failing to include particulars and valuation of securities justified amendment where no practical prejudice was shown.' 'Whether costs should be ordered in favour of the Trustee, debtor, or creditors.']

Ratio Decidendi

The petition was further amended because the omission to state the Bank's securities and estimate their value was due to inadvertence, the Bank did not pretend to be an unsecured creditor, the petition disclosed mortgage liabilities suggesting securities were held, and neither the debtor nor creditors showed any disadvantage caused by the omission beyond an expectation of possible payment. Refusing amendment would produce the harsh result of denying the Bank securities taken for consideration, while any prejudice to the Trustee from issuing the s 44(5) notice could be remedied by costs.

Court Disposition

Creditor's petition further amended; re-service dispensed with; Trustee's s 44(5) request set aside; Westpac ordered to pay the Trustee's costs on a solicitor and client basis; no other costs orders made.

Orders

  • ["The creditor's petition number 128 of 1996 filed on 22 February 1996 and amended on 29 May 1996 be further amended in terms of Exhibit GDS-8 to the affidavit of G D Sheahan filed 19 September 1996." 'Re-service of the further amended petition be dispensed with.' 'The request by the Trustee pursuant to s 44(5)...