Re McLaren, Phillip Ex Parte Aboriginal Torres Strait Islander Commission [1997] FCA 397

Re McLaren, Phillip Ex Parte Aboriginal Torres Strait Islander Commission [1997] FCA 397

The judgment debt owed by Mr McLaren to ATSIC was not provable in his previous bankruptcy because, at the date of that bankruptcy, he was not a party to the Focopa-ATSIC contract, had no legal relationship with ATSIC capable of founding a contingent liability, and no possible, likely or expected liability had crystallised. The debt arose only after his discharge through the later proceedings and orders against him. Accordingly, ATSIC had made out the requirements of section 52(1) of the Bankruptcy Act 1966 (Cth), and a sequestration order should be made.

Jurisdiction
Australia
Judgment Date
22 May 1997
Procedural Posture
Creditor's Petition for Sequestration Order Under the Bankruptcy Act 1966 (cth) / Final Determination of Opposed Creditor's Petition
Outcome
Sequestration order made against the estate of Phillip McLaren.
Legal Topics
["creditor's Petition" 'sequestration Order' 'provable Debts' 'contingent Liabilities' 'bankruptcy Notice' 'act of Bankruptcy']
['bankruptcy'] ["creditor's Petition" 'sequestration Order' 'provable Debts' 'contingent Liabilities' 'bankruptcy Notice' 'act of Bankruptcy']

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Procedural Posture

Creditor's Petition for Sequestration Order Under the Bankruptcy Act 1966 (cth) / Final Determination of Opposed Creditor's Petition

Legal Issues

  1. 1 ["Whether the judgment debt relied on for the creditor's petition was provable in Mr McLaren's previous bankruptcy as a contingent liability." 'Whether a legal relationship between the bankrupt and the creditor at the date of the previous bankruptcy was required to found a debt provable in that bankruptcy.' 'Whether the petitioning creditor had made out the requirements for a sequestration order under section 52(1) of the Bankruptcy Act 1966 (Cth).']

Ratio Decidendi

The judgment debt owed by Mr McLaren to ATSIC was not provable in his previous bankruptcy because, at the date of that bankruptcy, he was not a party to the Focopa-ATSIC contract, had no legal relationship with ATSIC capable of founding a contingent liability, and no possible, likely or expected liability had crystallised. The debt arose only after his discharge through the later proceedings and orders against him. Accordingly, ATSIC had made out the requirements of section 52(1) of the Bankruptcy Act 1966 (Cth), and a sequestration order should be made.

Court Disposition

Sequestration order made against the estate of Phillip McLaren.

Orders

  • ['A sequestration order be made against the estate of the debtor.' 'The Registrar appoint an appropriate trustee to the estate.' 'The costs of the creditor of and pertaining to the petition, including any reserved costs, be paid by the debtor.' 'The creditor file a minute of these orders with the Registrar in...