Re Silberman, David Ex Parte The Bankrupt & Goodyear Tyre & Rubber Company (Australia) Ltd [1982] FCA 115

Re Silberman, David Ex Parte The Bankrupt & Goodyear Tyre & Rubber Company (Australia) Ltd [1982] FCA 115

The bankrupt failed to prove any concluded agreement for payment by instalments because the Court preferred the evidence that security was a necessary precondition and had not been provided. His ability-to-pay contention depended on that alleged arrangement and therefore failed. The attack on the bankruptcy notice also failed because the $9.09 overstatement of interest was reflected in the total amount claimed and, no notice having been given under s 41(5), the notice was saved. No basis was established for annulling the bankruptcy or dismissing the petition.

Jurisdiction
Australia
Judgment Date
22 June 1982
Procedural Posture
Bankruptcy Application for Annulment of Sequestration Order / Determination of Application Dated 28 January 1982
Outcome
Application dismissed.
Legal Topics
['annulment of Sequestration Order' "creditor's Petition" 'bankruptcy Notice' 'alleged Instalment Payment Agreement' 'ability to Pay Debts' 'act of Bankruptcy' 'overstatement of Interest']
['bankruptcy' 'insolvency' 'civil Procedure'] ['annulment of Sequestration Order' "creditor's Petition" 'bankruptcy Notice' 'alleged Instalment Payment Agreement' 'ability to Pay Debts' 'act of Bankruptcy' 'overstatement of Interest']

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Procedural Posture

Bankruptcy Application for Annulment of Sequestration Order / Determination of Application Dated 28 January 1982

Legal Issues

  1. 1 ['Whether an agreement was made between the bankrupt and the petitioning creditor for payment of the judgment debt by instalments.' 'Whether the bankrupt was able to pay his debts at the time of the sequestration order and at the time of the annulment application.' 'Whether the bankrupt had committed an act of bankruptcy.' 'Whether the bankruptcy notice was invalid because it overstated the amount of interest claimed by $9.09.' 'Whether the petitioning creditor ought not to have moved for a sequestration order or should have disclosed matters which would have led the Court to dismiss or adjourn the petition.']

Ratio Decidendi

The bankrupt failed to prove any concluded agreement for payment by instalments because the Court preferred the evidence that security was a necessary precondition and had not been provided. His ability-to-pay contention depended on that alleged arrangement and therefore failed. The attack on the bankruptcy notice also failed because the $9.09 overstatement of interest was reflected in the total amount claimed and, no notice having been given under s 41(5), the notice was saved. No basis was established for annulling the bankruptcy or dismissing the petition.

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.' 'The costs of the respondent of and incidental to the application including reserved costs are to be paid by the bankrupt, such costs to be taxed if not agreed.' 'Liberty to apply is reserved to either party.']