Re: Haddad, Garry; & Ex Parte: R W Jordan Pty Ltd [1997] FCA 800

Re: Haddad, Garry; & Ex Parte: R W Jordan Pty Ltd [1997] FCA 800

Although the default judgment justified going behind the judgment, the debtor failed to show that no real debt underlay it. The June 1991 guarantee was intended to operate as a guarantee, was returned to the creditor, was supported by the creditor's extension of credit to Chartspike Pty Ltd, and was not invalidated by Chartspike's failure to execute it or by incomplete standard-form provisions. The October 1991 guarantee was supported by the creditor's promise and subsequent supply of goods required to complete the Castle Hill project, and the debtor's evidence did not establish absence of choice or illegitimate pressure amounting to economic duress. The Court was therefore satisfied that...

Jurisdiction
Australia
Judgment Date
20 August 1997
Procedural Posture
Creditor's Petition for a Sequestration Order / Hearing of Creditor's Petition Opposed by Notice Under Bankruptcy Rules, R 20
Outcome
Sequestration order made against the estate of the debtor.
Legal Topics
["creditor's Petition" 'going Behind Default Judgment' 'guarantees' 'consideration' 'economic Duress' 'deed Poll Execution']
['bankruptcy' 'contract Law'] ["creditor's Petition" 'going Behind Default Judgment' 'guarantees' 'consideration' 'economic Duress' 'deed Poll Execution']

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

Creditor's Petition for a Sequestration Order / Hearing of Creditor's Petition Opposed by Notice Under Bankruptcy Rules, R 20

Legal Issues

  1. 1 ['Whether the Court should go behind the default judgment to determine whether there was in truth and reality a debt owed to the petitioning creditor.' 'Whether the June 1991 guarantee was unenforceable because Chartspike Pty Ltd did not execute the document.' 'Whether the June 1991 guarantee was too vague or uncertain because parts of the standard form were left incomplete.' 'Whether the October 1991 guarantee failed for want of consideration.' 'Whether the October 1991 guarantee was unenforceable because the debtor signed under economic duress.' 'Whether the October 1991 document could operate as a deed poll if not properly witnessed under s 38 of the Conveyancing Act 1919 (NSW).']

Ratio Decidendi

Although the default judgment justified going behind the judgment, the debtor failed to show that no real debt underlay it. The June 1991 guarantee was intended to operate as a guarantee, was returned to the creditor, was supported by the creditor's extension of credit to Chartspike Pty Ltd, and was not invalidated by Chartspike's failure to execute it or by incomplete standard-form provisions. The October 1991 guarantee was supported by the creditor's promise and subsequent supply of goods required to complete the Castle Hill project, and the debtor's evidence did not establish absence of choice or illegitimate pressure amounting to economic duress. The Court was therefore satisfied that...

Court Disposition

Sequestration order made against the estate of the debtor.

Orders

  • ['The estate of the debtor be sequestrated.' "The petitioning creditor's costs, including any reserved costs, be taxed and paid in accordance with the Bankruptcy Act 1966."]