Re: Bride, Edward James & Anor as Trustees of the Pinwernying Family Trust; & Ex Parte: KMG Hungerfords (A Firm) [1997] FCA 1294

Re: Bride, Edward James & Anor as Trustees of the Pinwernying Family Trust; & Ex Parte: KMG Hungerfords (A Firm) [1997] FCA 1294

The judgment debt arose from litigation determined after a contested Supreme Court hearing, an appeal to the Full Court, and a dismissed special leave application to the High Court. The debtors' allegations and complaints either had been raised or could have been raised in that litigation and did not provide an exceptional basis to go behind the judgment. The pending Supreme Court action against KPMG Peat Marwick did not provide a basis to adjourn or dismiss the creditor's petition. Subject to proof of continuing debt and an affidavit of search, a sequestration order was warranted.

Jurisdiction
Australia
Judgment Date
26 November 1997
Procedural Posture
Creditor's Petition in Bankruptcy / Hearing of Creditor's Petition
Outcome
Sequestration order made against the estate of the judgment debtors, with the judgment creditor's costs to be taxed and paid from the estate.
Legal Topics
["creditor's Petition" 'bankruptcy Notice' 'act of Bankruptcy' 'going Behind Judgment' 'sequestration Order' 'judgment Debt' 'counter Claim, Set Off or Cross Demand']
['bankruptcy'] ["creditor's Petition" 'bankruptcy Notice' 'act of Bankruptcy' 'going Behind Judgment' 'sequestration Order' 'judgment Debt' 'counter Claim, Set Off or Cross Demand']

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Procedural Posture

Creditor's Petition in Bankruptcy / Hearing of Creditor's Petition

Legal Issues

  1. 1 ["Whether the debtors' non-compliance with the bankruptcy notice supported a sequestration order under the Bankruptcy Act 1966." 'Whether the Court should go behind the Supreme Court judgment and costs order on allegations of fraud, collusion, sharp practice or miscarriage of justice.' "Whether pending Supreme Court action against KPMG Peat Marwick provided a set-off, counter-claim or cross demand, or otherwise justified adjourning or dismissing the creditor's petition."]

Ratio Decidendi

The judgment debt arose from litigation determined after a contested Supreme Court hearing, an appeal to the Full Court, and a dismissed special leave application to the High Court. The debtors' allegations and complaints either had been raised or could have been raised in that litigation and did not provide an exceptional basis to go behind the judgment. The pending Supreme Court action against KPMG Peat Marwick did not provide a basis to adjourn or dismiss the creditor's petition. Subject to proof of continuing debt and an affidavit of search, a sequestration order was warranted.

Court Disposition

Sequestration order made against the estate of the judgment debtors, with the judgment creditor's costs to be taxed and paid from the estate.

Orders

  • ['A sequestration order be made against the estate of Edward James Bride and Wendy Margaret Bride as Trustees of the Pinwernying Family Trust.' "The Judgment Creditor's costs be taxed and paid from the estate of the Judgment Debtors in accordance with the Bankruptcy Act 1966."]