Jackson, Re J. & Anor Sterling Industries Ltd [1986] FCA 380

Jackson, Re J. & Anor Sterling Industries Ltd [1986] FCA 380

The applicant established a sufficient prima facie case that Mr Jackson's debtor's petition was an abuse of the procedure under s.55 of the Bankruptcy Act 1966. On the conceded findings of Sheppard J., the inference was open that the petition was a continuation of a plan to defraud the applicant and was presented for the foreign purpose of making it impossible to enforce an order of the Court that Mr Jackson had the capacity to obey. The evidence did not require a finding of insolvency, and discretionary objections did not justify refusing relief. The interlocutory injunction was therefore continued until further order.

Jurisdiction
Australia
Judgment Date
05 September 1986
Procedural Posture
Bankruptcy Interlocutory Application for an Injunction Restraining Presentation and Acceptance of a Debtor's Petition Under S.55 of the Bankruptcy Act 1966 / Application to Continue an Ex Parte Injunction; Reasons and Orders Delivered on 5 September 1986
Outcome
Interlocutory injunction continued until further order; costs reserved.
Legal Topics
["debtor's Petition" 'abuse of Process' 'interlocutory Injunction' 'mareva Order' 'insolvency']
['bankruptcy' 'civil Procedure' 'equity'] ["debtor's Petition" 'abuse of Process' 'interlocutory Injunction' 'mareva Order' 'insolvency']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Bankruptcy Interlocutory Application for an Injunction Restraining Presentation and Acceptance of a Debtor's Petition Under S.55 of the Bankruptcy Act 1966 / Application to Continue an Ex Parte Injunction; Reasons and Orders Delivered on 5 September 1986

Legal Issues

  1. 1 ["Whether the presentation and acceptance of John William Jackson's debtor's petition under s.55 of the Bankruptcy Act 1966 should be restrained as an abuse of the procedure under s.55." 'Whether the applicant had shown a serious question to be tried and discretionary grounds for interlocutory relief.' "Whether the evidence supported an inference that Mr Jackson was not insolvent and was using the debtor's petition to evade enforcement of earlier court orders."]

Ratio Decidendi

The applicant established a sufficient prima facie case that Mr Jackson's debtor's petition was an abuse of the procedure under s.55 of the Bankruptcy Act 1966. On the conceded findings of Sheppard J., the inference was open that the petition was a continuation of a plan to defraud the applicant and was presented for the foreign purpose of making it impossible to enforce an order of the Court that Mr Jackson had the capacity to obey. The evidence did not require a finding of insolvency, and discretionary objections did not justify refusing relief. The interlocutory injunction was therefore continued until further order.

Court Disposition

Interlocutory injunction continued until further order; costs reserved.

Orders

  • ['Upon the Applicant giving the usual undertaking as to damages, John William Jackson be restrained until further order from presenting a petition against himself pursuant to s.55 of the Bankruptcy Act 1966.' 'The Registrar in Bankruptcy for the Southern District of the State of Queensland be restrained until...