Esanda Finance Corporations Ltd v Smart [1999] FCA 1209

Esanda Finance Corporations Ltd v Smart [1999] FCA 1209

The respondent's reliance on s 40(1)(g) was misconceived because the matters said to constitute the cross-demand had been raised in his own County Court proceeding, or if any additional matters were not raised, they could by law have been raised there. The respondent therefore did not establish the ground of opposition, the act of bankruptcy was proved, and the requirements of s 52(1) were satisfied.

Jurisdiction
Australia
Judgment Date
30 July 1999
Procedural Posture
Bankruptcy Creditor's Petition / Hearing of Creditor's Petition Opposed by Notice of Intention to Oppose
Outcome
Sequestration order made against the estate of Anthony Ivan Smart.
Legal Topics
["creditor's Petition" "notice of Intention to Oppose Creditor's Petition" 'cross Demand' 'act of Bankruptcy' 'sequestration Order']
['bankruptcy'] ["creditor's Petition" "notice of Intention to Oppose Creditor's Petition" 'cross Demand' 'act of Bankruptcy' 'sequestration Order']

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Procedural Posture

Bankruptcy Creditor's Petition / Hearing of Creditor's Petition Opposed by Notice of Intention to Oppose

Legal Issues

  1. 1 ['Whether the respondent debtor had a cross-demand equal to or exceeding the amount of the judgment debt that could not have been set up in the proceeding in which the judgment was obtained under s 40(1)(g) of the Bankruptcy Act 1966 (Cth).' 'Whether the respondent debtor committed the act of bankruptcy alleged in the petition and whether the requirements of s 52(1) of the Bankruptcy Act 1966 (Cth) were satisfied.']

Ratio Decidendi

The respondent's reliance on s 40(1)(g) was misconceived because the matters said to constitute the cross-demand had been raised in his own County Court proceeding, or if any additional matters were not raised, they could by law have been raised there. The respondent therefore did not establish the ground of opposition, the act of bankruptcy was proved, and the requirements of s 52(1) were satisfied.

Court Disposition

Sequestration order made against the estate of Anthony Ivan Smart.

Orders

  • ['A sequestration order is made against the estate of Anthony Ivan Smart.' "The applicant creditor's costs including reserve costs are to be taxed and paid in accordance with the Act."]