Re Udowenko, Michael & Ors v Ex Parte Mitchell, Alan Bernard [1997] FCA 110

Re Udowenko, Michael & Ors v Ex Parte Mitchell, Alan Bernard [1997] FCA 110

Given the extensive prior litigation, including findings by Waddell CJ in Eq and multiple dismissed applications to set aside the relevant judgments, and in the absence of persuasive evidence or argument going to the existence of no underlying debt, the Court declined to go behind Mitchell's judgment and was satisfied as to the necessary requirements for sequestration under s 52 of the Bankruptcy Act 1966.

Jurisdiction
Australia
Judgment Date
19 February 1997
Procedural Posture
Creditor's Petition for Bankruptcy / Hearing and Judgment on Creditor's Petition
Outcome
Creditor's petition granted; sequestration order made against the estates of the Debtors
Legal Topics
["creditor's Petition" 'bankruptcy Notice Compliance' 'authority of Solicitor' 'legal Profession Act – Bill of Costs' 'going Behind Judgment']
['bankruptcy'] ["creditor's Petition" 'bankruptcy Notice Compliance' 'authority of Solicitor' 'legal Profession Act – Bill of Costs' 'going Behind Judgment']

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Procedural Posture

Creditor's Petition for Bankruptcy / Hearing and Judgment on Creditor's Petition

Legal Issues

  1. 1 ["Whether to exercise discretion to go behind Mitchell's judgment for purposes of ascertaining if Debtors are truly indebted to him" 'Whether Dungog proceeding judgment should be disregarded due to non-compliance with s 198 of Legal Profession Act 1987 (NSW) (bill of costs)' 'Error in date of service and act of bankruptcy in relation to Wolodymyr Udowenko']

Ratio Decidendi

Given the extensive prior litigation, including findings by Waddell CJ in Eq and multiple dismissed applications to set aside the relevant judgments, and in the absence of persuasive evidence or argument going to the existence of no underlying debt, the Court declined to go behind Mitchell's judgment and was satisfied as to the necessary requirements for sequestration under s 52 of the Bankruptcy Act 1966.

Court Disposition

Creditor's petition granted; sequestration order made against the estates of the Debtors

Orders

  • ["Paragraph 4 of the Creditor's Petition amended to specify Michael and Helen Udowenko failed to comply with bankruptcy notice by 4 June 1996, Wolodymyr Udowenko by 3 July 1996, with service dates clarified." 'Sequestration order made against the estates of the Debtors.' "Petitioning Creditor's costs to be taxed and...