Re Soloman, E. v. Ex parte Reid, J.R. [1986] FCA 228

Re Soloman, E. v. Ex parte Reid, J.R. [1986] FCA 228

Because the receivership imposed by the Supreme Court required that leave be obtained to execute against the debtor's property and no such leave was obtained, execution was, in effect, stayed at the relevant time. Therefore, s.41(3)(b) of the Bankruptcy Act 1966 applied and the bankruptcy notice was invalid, resulting in dismissal of the petition.

Parties
Debtor: Eddie Solomon; Petitioning Creditor: John Ralph Reid; Applicant in Receivership Proceedings: Corporate Affairs Commission; Official Trustee: Official Trustee
Jurisdiction
Australia
Judgment Date
06 June 1986
Procedural Posture
Bankruptcy Petition / Judgment After Further Argument
Outcome
petition dismissed
Legal Topics
Receivership, Stay of Execution, Bankruptcy Notice, Enforcement of Judgment
Bankruptcy Corporate Law Receivership Stay of Execution Bankruptcy Notice Enforcement of Judgment

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Parties

Eddie Solomon

Debtor

John Ralph Reid

Petitioning Creditor

Corporate Affairs Commission

Applicant in Receivership Proceedings

Official Trustee

Official Trustee

Procedural Posture

Bankruptcy Petition / Judgment After Further Argument

Legal Issues

  1. 1 Whether the issue of a bankruptcy notice was prevented by s.41(3)(b) of the Bankruptcy Act 1966 due to the effect of a receivership order over the debtor's property
  2. 2 Whether the effect of the receivership was that execution of judgment was stayed, thus proscribing the bankruptcy notice

Ratio Decidendi

Because the receivership imposed by the Supreme Court required that leave be obtained to execute against the debtor's property and no such leave was obtained, execution was, in effect, stayed at the relevant time. Therefore, s.41(3)(b) of the Bankruptcy Act 1966 applied and the bankruptcy notice was invalid, resulting in dismissal of the petition.

Court Disposition

petition dismissed

Orders

  • Petition dismissed.
  • Liberty reserved to any party to apply for costs on 7 days' notice.