Re Hodby, B.P. v. Ex parte Kenny, J. [1987] FCA 438

Re Hodby, B.P. v. Ex parte Kenny, J. [1987] FCA 438

Even if jurisdiction exists to order security for costs in addition to Bankruptcy Rule 14, there are no circumstances here making such an order necessary for carrying out or giving effect to the Act, particularly where any impecuniosity of the creditor results from the debtor’s actions and the merits do not otherwise justify an order.

Parties
Debtor: Barry Patrick Hodby; Creditor: John Kenny
Jurisdiction
Australia
Judgment Date
13 August 1987
Procedural Posture
Bankruptcy Application / Interlocutory Application for Security for Costs, Dismissed at Hearing
Outcome
Application for security for costs dismissed. Costs ordered against the debtor.
Legal Topics
Security for Costs, Jurisdiction Under Bankruptcy Act, Impecuniosity of Creditor, Orders for Costs
Bankruptcy Security for Costs Jurisdiction Under Bankruptcy Act Impecuniosity of Creditor Orders for Costs

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Parties

Barry Patrick Hodby

Debtor

John Kenny

Creditor

Procedural Posture

Bankruptcy Application / Interlocutory Application for Security for Costs, Dismissed at Hearing

Legal Issues

  1. 1 Whether the Court has jurisdiction to order security for costs upon application by a debtor against a creditor in bankruptcy proceedings
  2. 2 Whether creditor's alleged impecuniosity is a ground for ordering security for costs
  3. 3 Whether any order for security is necessary to carry out or give effect to the Bankruptcy Act

Ratio Decidendi

Even if jurisdiction exists to order security for costs in addition to Bankruptcy Rule 14, there are no circumstances here making such an order necessary for carrying out or giving effect to the Act, particularly where any impecuniosity of the creditor results from the debtor’s actions and the merits do not otherwise justify an order.

Court Disposition

Application for security for costs dismissed. Costs ordered against the debtor.

Orders

  • This application be dismissed.
  • The debtor, Barry Patrick Hodby, do pay the costs of this application.