Re Soliman, H. v. Ex parte G James Extrusion Company P/L & Anor [1994] FCA 914

Re Soliman, H. v. Ex parte G James Extrusion Company P/L & Anor [1994] FCA 914

The allegation of revocation of the guarantee was raised late, was not supported by documentation or any credible witness, and is not considered bona fide. The guarantee required written notice of revocation, which was not given. There is in reality a debt due under the terms of the guarantee. The creditor's petition succeeds and a sequestration order is made.

Parties
Debtor/respondent: Hashem Soliman; Creditor/applicant: G James Extrusion Company Pty Ltd; Creditor/applicant: G James Safety Glass Pty Ltd
Jurisdiction
Australia
Judgment Date
22 November 1994
Procedural Posture
Bankruptcy Creditor's Petition / Hearing of Creditor's Petition and Making of Sequestration Order
Outcome
Sequestration order made against debtor's estate; costs to petitioning creditor taxed and paid.
Legal Topics
Creditor's Petition, Sequestration Order, Guarantee, Revocation of Guarantee, Default Judgment
Insolvency Bankruptcy Creditor's Petition Sequestration Order Guarantee Revocation of Guarantee Default Judgment

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Parties

Hashem Soliman

Debtor/respondent

G James Extrusion Company Pty Ltd

Creditor/applicant

G James Safety Glass Pty Ltd

Creditor/applicant

Procedural Posture

Bankruptcy Creditor's Petition / Hearing of Creditor's Petition and Making of Sequestration Order

Legal Issues

  1. 1 Whether there exists in reality a debt due under the guarantee for the purposes of the creditor’s petition
  2. 2 Whether the guarantee was revoked or withdrawn by the debtor
  3. 3 Whether the circumstances justify going behind the judgment for the creditor's petition

Ratio Decidendi

The allegation of revocation of the guarantee was raised late, was not supported by documentation or any credible witness, and is not considered bona fide. The guarantee required written notice of revocation, which was not given. There is in reality a debt due under the terms of the guarantee. The creditor's petition succeeds and a sequestration order is made.

Court Disposition

Sequestration order made against debtor's estate; costs to petitioning creditor taxed and paid.

Orders

  • A sequestration order be made against the estate of the debtor Hashem Soliman.
  • The petitioning creditor's costs of and incidental to the petition, including reserved costs, be taxed and paid in accordance with the Bankruptcy Act 1966.