Re Loeskow (Debtor) Ex parte Avokah Irrigation Pty Ltd (Receiver and Manager Appointed)(Creditor) & Anor [1995] FCA 721

Re Loeskow (Debtor) Ex parte Avokah Irrigation Pty Ltd (Receiver and Manager Appointed)(Creditor) & Anor [1995] FCA 721

Avokah Irrigation Pty Ltd was a creditor entitled to prove for the part of debt it paid under guarantee, and exclusion from voting at the creditors' meeting was erroneous; as a result, the special resolution purportedly passed was invalid. The Deed of Arrangement was void and a sequestration order was granted against Neville Loeskow's estate.

Jurisdiction
Australia
Judgment Date
25 August 1995
Procedural Posture
Bankruptcy Application / Judgment on Applications for Declaration and Sequestration Order
Outcome
Sequestration order made against the estate of Neville Loeskow; proceedings stayed for twenty-one days; parties to deliver written submissions on costs within twenty-one days.
Legal Topics
['deed of Arrangement' 'proof of Debt' 'voting Entitlements' 'rule Against Double Proof' 'receivership' 'appointment Validity']
['bankruptcy' 'corporations'] ['deed of Arrangement' 'proof of Debt' 'voting Entitlements' 'rule Against Double Proof' 'receivership' 'appointment Validity']

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 Application / Judgment on Applications for Declaration and Sequestration Order

Legal Issues

  1. 1 ['Whether a guarantor can prove for amount of part payment made under a guarantee where principal creditor is not proving for that part' "Whether the chairman erred in rejecting Avokah Irrigation's proof of debt for voting purposes" 'Application of rule against double proof in bankruptcy proceedings' 'Validity of appointment of Receiver and Manager to Avokah Irrigation Pty Ltd' 'Whether delay in bringing application under s. 222 Bankruptcy Act affects exercise of discretion and prejudice']

Ratio Decidendi

Avokah Irrigation Pty Ltd was a creditor entitled to prove for the part of debt it paid under guarantee, and exclusion from voting at the creditors' meeting was erroneous; as a result, the special resolution purportedly passed was invalid. The Deed of Arrangement was void and a sequestration order was granted against Neville Loeskow's estate.

Court Disposition

Sequestration order made against the estate of Neville Loeskow; proceedings stayed for twenty-one days; parties to deliver written submissions on costs within twenty-one days.

Orders

  • ['The estate of Neville Loeskow is sequestrated.' 'Proceedings under the order stayed for twenty-one days.' 'Written submissions regarding costs to be delivered within twenty-one days.']