Re Behan, D. v Ex parte Pioneer Concrete (Qld) Pty Ltd [1995] FCA 564

Re Behan, D. v Ex parte Pioneer Concrete (Qld) Pty Ltd [1995] FCA 564

Section 440J of the Corporations Law did not stay execution of the judgment or prevent the bankruptcy notice because, after judgment was entered, the creditor's rights under the guarantee merged in the judgment. The bankruptcy notice was based on enforcement of the judgment debt, not enforcement of the guarantee, so s440J(1)(a) did not apply.

Jurisdiction
Australia
Judgment Date
03 August 1995
Procedural Posture
Bankruptcy Application to Set Aside a Bankruptcy Notice / Reasons for Judgment and Orders
Outcome
Application dismissed.
Legal Topics
['bankruptcy Notice' 'company Administration' 'guarantee of Company Liability' 'stay of Enforcement' 'merger of Guarantee Debt in Judgment' 's440 J Corporations Law']
['bankruptcy' 'corporations'] ['bankruptcy Notice' 'company Administration' 'guarantee of Company Liability' 'stay of Enforcement' 'merger of Guarantee Debt in Judgment' 's440 J Corporations Law']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Bankruptcy Application to Set Aside a Bankruptcy Notice / Reasons for Judgment and Orders

Legal Issues

  1. 1 ["Whether a company administration under the Corporations Law operated to stay execution of a judgment debt obtained against a director who had guaranteed the company's debt." 'Whether issuing and serving a bankruptcy notice based on the judgment involved enforcement of the guarantee for the purposes of s440J of the Corporations Law.' 'Whether rights under the guarantee had merged in the judgment so that enforcement was of the judgment rather than the guarantee.']

Ratio Decidendi

Section 440J of the Corporations Law did not stay execution of the judgment or prevent the bankruptcy notice because, after judgment was entered, the creditor's rights under the guarantee merged in the judgment. The bankruptcy notice was based on enforcement of the judgment debt, not enforcement of the guarantee, so s440J(1)(a) did not apply.

Court Disposition

Application dismissed.

Orders

  • ['The application be dismissed.' "The debtor pay the creditor's costs of the application."]