Re Ellis, Peter John; Ex Parte Sapphire Excavations Pty Ltd [1997] FCA 873

Re Ellis, Peter John; Ex Parte Sapphire Excavations Pty Ltd [1997] FCA 873

Because the County Court judgment was entered after a contested trial in which the debtor and Glenburn appeared and were legally represented, and because the matters raised by the debtor did not singly or in combination establish fraud, collusion or miscarriage of justice, the Court declined to go behind that judgment. The Court was satisfied that the act of bankruptcy relied on was committed on 25 October 1996 and that the matters required by s 52(1) of the Act were proved, so a sequestration order should be made.

Jurisdiction
Australia
Judgment Date
25 August 1997
Procedural Posture
Creditor's Petition Seeking a Sequestration Order / Hearing of Creditor's Petition; Debtor Sought to Have the Court Go Behind the Judgment Founding the Bankruptcy Notice
Outcome
Sequestration order made against the estate of the debtor.
Legal Topics
["creditor's Petition" 'sequestration Order' 'going Behind a Judgment' 'bankruptcy Notice' 'act of Bankruptcy']
['bankruptcy'] ["creditor's Petition" 'sequestration Order' 'going Behind a Judgment' 'bankruptcy Notice' 'act of Bankruptcy']

Case Brief

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Procedural Posture

Creditor's Petition Seeking a Sequestration Order / Hearing of Creditor's Petition; Debtor Sought to Have the Court Go Behind the Judgment Founding the Bankruptcy Notice

Legal Issues

  1. 1 ['Whether the Court should go behind the County Court of Victoria judgment on which the bankruptcy notice debt was founded.' 'Whether the debtor had committed the act of bankruptcy relied on in the petition and whether the requirements of s 52(1) of the Act were proved.' "Whether a sequestration order should be made against the debtor's estate."]

Ratio Decidendi

Because the County Court judgment was entered after a contested trial in which the debtor and Glenburn appeared and were legally represented, and because the matters raised by the debtor did not singly or in combination establish fraud, collusion or miscarriage of justice, the Court declined to go behind that judgment. The Court was satisfied that the act of bankruptcy relied on was committed on 25 October 1996 and that the matters required by s 52(1) of the Act were proved, so a sequestration order should be made.

Court Disposition

Sequestration order made against the estate of the debtor.

Orders

  • ['The Court declined to go behind the judgment of the County Court.' 'A sequestration order be made against the estate of Peter John Ellis.' "The petitioning creditor's costs of and incidental to the petition, including any reserved costs, be taxed and paid out of the estate of the bankrupt in accordance with the...