Trojan, Re E. & Anor Ex Parte Corporation of the Town of Hindmarsh [1986] FCA 481

Trojan, Re E. & Anor Ex Parte Corporation of the Town of Hindmarsh [1986] FCA 481

Eric Trojan was not able to pay his debts as they fell due because he was beneficially entitled to only one half of the monies in Court while liable for the full amount of the joint judgment debts, and his other assets were insufficient. Ruth was solvent because, accepting the documents at face value, she had an immediate capacity to borrow $20,000 against her interest in the Cherry Gardens property or its proceeds and also had one half of the money in Court, sufficient to meet the $17,510.62 debt. The appeal against the Local Court judgment had been abandoned or not pursued, and another judgment remained unsatisfied. The counterclaim had little if any validity, had little or no prospect...

Jurisdiction
Australia
Judgment Date
05 November 1986
Procedural Posture
Creditor's Petition in Bankruptcy / Hearing of Notices of Opposition to Creditor's Petition
Outcome
The creditor's petition against Ruth was dismissed. Further consideration of the creditor's petition against Eric Trojan was adjourned to a date to be fixed, with the Court indicating that a sequestration order would be made against him when the required affidavits of debt and search were filed.
Legal Topics
["creditors' Petitions" 'joint Debtors' 'notices of Opposition' 'solvency' 'counterclaim' 'appeal Against Judgment Debt' 'going Behind Judgment']
['bankruptcy' 'insolvency'] ["creditors' Petitions" 'joint Debtors' 'notices of Opposition' 'solvency' 'counterclaim' 'appeal Against Judgment Debt' 'going Behind Judgment']

Case Brief

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Procedural Posture

Creditor's Petition in Bankruptcy / Hearing of Notices of Opposition to Creditor's Petition

Legal Issues

  1. 1 ["Whether each debtor was able to pay debts as they fell due for the purposes of opposing a creditor's petition." "Whether the creditor's petition should be dismissed or adjourned because of an appeal against the Local Court judgment." "Whether the debtors' counterclaim against the creditor justified refusing or adjourning a sequestration order." 'Whether the Court should go behind the judgments to enquire whether they were founded on real debts.']

Ratio Decidendi

Eric Trojan was not able to pay his debts as they fell due because he was beneficially entitled to only one half of the monies in Court while liable for the full amount of the joint judgment debts, and his other assets were insufficient. Ruth was solvent because, accepting the documents at face value, she had an immediate capacity to borrow $20,000 against her interest in the Cherry Gardens property or its proceeds and also had one half of the money in Court, sufficient to meet the $17,510.62 debt. The appeal against the Local Court judgment had been abandoned or not pursued, and another judgment remained unsatisfied. The counterclaim had little if any validity, had little or no prospect...

Court Disposition

The creditor's petition against Ruth was dismissed. Further consideration of the creditor's petition against Eric Trojan was adjourned to a date to be fixed, with the Court indicating that a sequestration order would be made against him when the required affidavits of debt and search were filed.

Orders

  • ["The creditor's petition against the debtor, Ruth, be dismissed." "Further consideration of creditor's petition against the debtor Eric Trojan be adjourned to a date to be fixed."]