Re Lindsay, B. v. Ex parte Liddy Kennelly & Co. [1985] FCA 468

Re Lindsay, B. v. Ex parte Liddy Kennelly & Co. [1985] FCA 468

There were insufficient substantial reasons to question the existence of the debt, particularly in light of the debtor's provision of post-dated cheques for the debt, which implied an admission of its validity. Consequently, directions for delivery of affidavits and going behind the judgment were declined.

Parties
Creditor (petitioning): Liddy Kennelly & Co.; Debtor: Bruce Lindsay
Jurisdiction
Australia
Judgment Date
18 September 1985
Procedural Posture
Bankruptcy Creditor's Petition / Procedural Directions and Application to Go Behind Magistrates Court Judgment
Outcome
Petition to be listed for further hearing at an early date; no order made to go behind judgment or for delivery of affidavits.
Legal Topics
Going Behind Judgments, Default Judgments, Procedural Fairness in Magistrates Court, Creditor's Petition
Bankruptcy Going Behind Judgments Default Judgments Procedural Fairness in Magistrates Court Creditor's Petition

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Parties

Liddy Kennelly & Co.

Creditor (petitioning)

Bruce Lindsay

Debtor

Procedural Posture

Bankruptcy Creditor's Petition / Procedural Directions and Application to Go Behind Magistrates Court Judgment

Legal Issues

  1. 1 Should the Court go behind the default judgment of the Magistrates Court in bankruptcy proceedings?
  2. 2 What is the relevance of the alleged improper refusal of an adjournment in the Magistrates Court to the existence of the debt?

Ratio Decidendi

There were insufficient substantial reasons to question the existence of the debt, particularly in light of the debtor's provision of post-dated cheques for the debt, which implied an admission of its validity. Consequently, directions for delivery of affidavits and going behind the judgment were declined.

Court Disposition

Petition to be listed for further hearing at an early date; no order made to go behind judgment or for delivery of affidavits.

Orders

  • The petition be listed for further hearing at an early date, to be fixed.