Re Davies, Kevin William; Ex Parte Finance & Mortgage Corp (NSW) Pty Ltd [1997] FCA 1326

Re Davies, Kevin William; Ex Parte Finance & Mortgage Corp (NSW) Pty Ltd [1997] FCA 1326

The petition was dismissed because the petitioning creditor no longer wished to pursue it and sought dismissal under section 52(2). As to costs, although the creditor was unsuccessful and abandoned the petition after the default judgment was set aside, it had not been unreasonable to file the petition when an act of bankruptcy had been committed. Justice therefore required no order for costs up to and including 6 June 1997, and that the Petitioner pay the Debtor's costs after that date.

Jurisdiction
Australia
Judgment Date
04 November 1997
Procedural Posture
Creditor's Petition Seeking a Sequestration Order / Hearing of Petitioning Creditor's Request to Dismiss the Petition Under Section 52(2) of the Bankruptcy Act 1966 (cth) and Determination of Costs
Outcome
Petition dismissed; no order as to costs up to and including 6 June 1997; Petitioner to pay the Debtor's costs after 6 June 1997.
Legal Topics
["creditor's Petition" 'sequestration Order' 'dismissal of Petition' 'costs' 'bankruptcy Notice' 'act of Bankruptcy' 'default Judgment']
['bankruptcy' 'civil Procedure'] ["creditor's Petition" 'sequestration Order' 'dismissal of Petition' 'costs' 'bankruptcy Notice' 'act of Bankruptcy' 'default Judgment']

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Procedural Posture

Creditor's Petition Seeking a Sequestration Order / Hearing of Petitioning Creditor's Request to Dismiss the Petition Under Section 52(2) of the Bankruptcy Act 1966 (cth) and Determination of Costs

Legal Issues

  1. 1 ["Whether the creditor's petition should be dismissed under section 52(2) of the Bankruptcy Act 1966 (Cth)." 'What costs order should be made where the petitioning creditor chose not to prosecute the petition after the underlying default judgment was set aside.']

Ratio Decidendi

The petition was dismissed because the petitioning creditor no longer wished to pursue it and sought dismissal under section 52(2). As to costs, although the creditor was unsuccessful and abandoned the petition after the default judgment was set aside, it had not been unreasonable to file the petition when an act of bankruptcy had been committed. Justice therefore required no order for costs up to and including 6 June 1997, and that the Petitioner pay the Debtor's costs after that date.

Court Disposition

Petition dismissed; no order as to costs up to and including 6 June 1997; Petitioner to pay the Debtor's costs after 6 June 1997.

Orders

  • ['The petition be dismissed.' 'There be no order as to the costs of the petition up to and including 6 June 1997.' 'The Petitioner pay the costs of the Debtor after 6 June 1997.']