Re Lance, Debra Kaye Ex Parte Nilant, Charles Philippe Louis v Lance, Debra Kaye [1996] FCA 1102

Re Lance, Debra Kaye Ex Parte Nilant, Charles Philippe Louis v Lance, Debra Kaye [1996] FCA 1102

The respondent did not establish special circumstances for release from the controlling trustee because the written authority and proposal made clear that control of her joint and separate property was being given, her non-attendance at the creditors' meeting did not invalidate the resolutions, and release would create a serious risk of dissipation of assets. A sequestration order was appropriate because the creditors passed a special resolution requiring the respondent to present a debtor's petition and she failed to do so, and the evidence showed debts capable of supporting bankruptcy, including the R K Bauer debt, State Taxation judgments, and sales tax partnership debt, while the...

Jurisdiction
Australia
Judgment Date
16 December 1996
Procedural Posture
Bankruptcy Application for Sequestration Order Under S221(1)(b) of the Bankruptcy Act 1966, With Respondent's Oral Application for Release of Property From Control Under S208(b) / Reasons for Judgment and Orders After Hearing
Outcome
Respondent's oral application for release of property from control refused; applicant's application for sequestration order granted.
Legal Topics
['part X Arrangements With Creditors' 'controlling Trustee' "release of Debtor's Property From Control" "sequestration Order After Failure to Present Debtor's Petition" 'proof of Debts' 'dishonoured Cheques' 'partnership Liability' 'sales Tax Assessment']
['bankruptcy' 'insolvency' 'partnership' 'taxation'] ['part X Arrangements With Creditors' 'controlling Trustee' "release of Debtor's Property From Control" "sequestration Order After Failure to Present Debtor's Petition" 'proof of Debts' 'dishonoured Cheques' 'partnership Liability' 'sales Tax Assessment']

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Procedural Posture

Bankruptcy Application for Sequestration Order Under S221(1)(b) of the Bankruptcy Act 1966, With Respondent's Oral Application for Release of Property From Control Under S208(b) / Reasons for Judgment and Orders After Hearing

Legal Issues

  1. 1 ["Whether special circumstances justified release of the respondent's property from control of the applicant under s208(b) of the Bankruptcy Act 1966." "Whether a sequestration order should be made under s221(1)(b) where creditors passed a special resolution requiring the respondent to present a debtor's petition and she failed to do so." 'Whether the respondent remained liable for the R K Bauer debt despite an agreement with Air Phoenix Pty Ltd.' 'Whether State Taxation judgments based on dishonoured cheques could be relied upon against the respondent.' 'Whether the respondent was in partnership with her husband and liable for sales tax debts of PK & DK Lance.' 'Whether the respondent had shown she was solvent or had sufficient assets or income to repay the debts.']

Ratio Decidendi

The respondent did not establish special circumstances for release from the controlling trustee because the written authority and proposal made clear that control of her joint and separate property was being given, her non-attendance at the creditors' meeting did not invalidate the resolutions, and release would create a serious risk of dissipation of assets. A sequestration order was appropriate because the creditors passed a special resolution requiring the respondent to present a debtor's petition and she failed to do so, and the evidence showed debts capable of supporting bankruptcy, including the R K Bauer debt, State Taxation judgments, and sales tax partnership debt, while the...

Court Disposition

Respondent's oral application for release of property from control refused; applicant's application for sequestration order granted.

Orders

  • ['A Sequestration Order be made against the estate of Debra Kaye Lance of 3 Keys Court, Leeming, Western Australia, pursuant to s221(1)(b) of the Bankruptcy Act 1966.' "The Applicant's costs be taxed and paid out of the estate of Debra Kaye Lance in accordance with the Bankruptcy Act 1966."]