Re Cornwall, A.T. v. Ex parte Whalan, K.H [1988] FCA 46

Re Cornwall, A.T. v. Ex parte Whalan, K.H [1988] FCA 46

The 16 December 1980 resolution stated only that there was no evidence, at that time, of dishonesty by Cornwall. Its final and conclusive effect was limited to the evidence as it stood at that time and did not prevent the Committee from later rescinding it and determining on 9 July 1987 that Cornwall's conduct was dishonest. The payment to Whalan was therefore properly made, the Law Society was subrogated to Whalan's rights and remedies to the extent of its payment and could continue the bankruptcy proceedings in Whalan's name. In any event, $7,722.88 interest remained owing by Cornwall to Whalan. The act of bankruptcy was established by returned unsatisfied execution and the statutory...

Jurisdiction
Australia
Judgment Date
26 February 1988
Procedural Posture
Bankruptcy Creditor's Petition for a Sequestration Order / Hearing of Debtor's Notice of Intention to Oppose the Petition and Making of Sequestration Order
Outcome
Cornwall's opposition was dismissed with costs and a sequestration order was made against his estate.
Legal Topics
["creditor's Petition" 'sequestration Order' 'act of Bankruptcy by Unsatisfied Execution' "solicitors' Fidelity Fund" 'subrogation' 'indebtedness']
['bankruptcy' 'legal Profession'] ["creditor's Petition" 'sequestration Order' 'act of Bankruptcy by Unsatisfied Execution' "solicitors' Fidelity Fund" 'subrogation' 'indebtedness']

Case Brief

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Procedural Posture

Bankruptcy Creditor's Petition for a Sequestration Order / Hearing of Debtor's Notice of Intention to Oppose the Petition and Making of Sequestration Order

Legal Issues

  1. 1 ["Whether the debtor was indebted to the judgment creditor after payment was made to the judgment creditor from the Solicitors' Fidelity Fund." 'Whether the Law Society of New South Wales was subrogated to the rights and remedies of the judgment creditor and entitled to continue the bankruptcy proceedings in his name.' "Whether the Committee's resolution of 16 December 1980 prevented the later resolution of 9 July 1987 determining that Cornwall's conduct was dishonest." 'Whether the requirements for making a sequestration order were satisfied.']

Ratio Decidendi

The 16 December 1980 resolution stated only that there was no evidence, at that time, of dishonesty by Cornwall. Its final and conclusive effect was limited to the evidence as it stood at that time and did not prevent the Committee from later rescinding it and determining on 9 July 1987 that Cornwall's conduct was dishonest. The payment to Whalan was therefore properly made, the Law Society was subrogated to Whalan's rights and remedies to the extent of its payment and could continue the bankruptcy proceedings in Whalan's name. In any event, $7,722.88 interest remained owing by Cornwall to Whalan. The act of bankruptcy was established by returned unsatisfied execution and the statutory...

Court Disposition

Cornwall's opposition was dismissed with costs and a sequestration order was made against his estate.

Orders

  • ['A sequestration order be made against the estate of the debtor Allan Terry Cornwall.' "The petitioning creditor's costs, including reserved costs, be taxed and paid in accordance with the Bankruptcy Act 1966." "Cornwall's opposition in accordance with his notice fails and is dismissed with costs."]