Toswell, D.A. v. Kimberley N.Z.I. Finance Ltd [1987] FCA 207

Toswell, D.A. v. Kimberley N.Z.I. Finance Ltd [1987] FCA 207

The Court declined to go behind the judgment on the basis that substantial reasons were not shown: the matters relied on by the debtor could and should have been raised in the Supreme Court where judgment was obtained, were not supported by direct evidence, and consisted for the most part of inadmissible hearsay. Therefore, a sequestration order was made.

Parties
Debtor: Deborah Anne Tosweil; Creditor: Kimberley N.Z.I. Finance Limited
Jurisdiction
Australia
Judgment Date
01 May 1987
Procedural Posture
Creditor's Bankruptcy Petition / Application for Sequestration Order; Opposition by Debtor
Outcome
Sequestration order made against the debtor; costs to petitioning creditor.
Legal Topics
Going Behind Judgment Debt, Counterclaim in Bankruptcy, Hearsay Evidence Admissibility
Bankruptcy Evidence Going Behind Judgment Debt Counterclaim in Bankruptcy Hearsay Evidence Admissibility

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Parties

Deborah Anne Tosweil

Debtor

Kimberley N.Z.I. Finance Limited

Creditor

Procedural Posture

Creditor's Bankruptcy Petition / Application for Sequestration Order; Opposition by Debtor

Legal Issues

  1. 1 Whether the Court should go behind the judgment debt in bankruptcy proceedings
  2. 2 Admissibility of hearsay evidence in bankruptcy jurisdiction
  3. 3 Effect of unraised counterclaim or set-off on bankruptcy petition

Ratio Decidendi

The Court declined to go behind the judgment on the basis that substantial reasons were not shown: the matters relied on by the debtor could and should have been raised in the Supreme Court where judgment was obtained, were not supported by direct evidence, and consisted for the most part of inadmissible hearsay. Therefore, a sequestration order was made.

Court Disposition

Sequestration order made against the debtor; costs to petitioning creditor.

Orders

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