Re Collard, Graham; Ex Parte Australian Guarantee Corp Ltd [1997] FCA 983

Re Collard, Graham; Ex Parte Australian Guarantee Corp Ltd [1997] FCA 983

The County Court order of 10 October 1995 was self-executing: on the debtor's failure to pay $30,671.20 into court by 24 October 1995, judgment took effect on 25 October 1995 for the petitioning creditor. The authenticated judgment was sufficient to make the creditor a person who had obtained a final judgment or final order under section 40(1)(g) of the Bankruptcy Act 1966, and the creditor was in a position to issue execution when the bankruptcy notice issued. The alleged defect in the bankruptcy notice was not made out because the higher sum was clearly the judgment debt plus specified interest, and the affidavits proved that the petition signatories held positions authorised under the...

Jurisdiction
Australia
Judgment Date
19 September 1997
Procedural Posture
Petition for Sequestration Order / Hearing of Bankruptcy Petition and Debtor's Opposition
Outcome
Sequestration order made against the debtor's estate.
Legal Topics
['sequestration Order' 'act of Bankruptcy' 'bankruptcy Notice' 'final Judgment or Final Order' 'self Executing Order' 'defect in Bankruptcy Notice' 'proof of Authority of Agents']
['bankruptcy'] ['sequestration Order' 'act of Bankruptcy' 'bankruptcy Notice' 'final Judgment or Final Order' 'self Executing Order' 'defect in Bankruptcy Notice' 'proof of Authority of Agents']

Case Brief

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Procedural Posture

Petition for Sequestration Order / Hearing of Bankruptcy Petition and Debtor's Opposition

Legal Issues

  1. 1 ['Whether the County Court order of 10 October 1995 was a final judgment or final order within the meaning of section 40(1)(g) of the Bankruptcy Act 1966.' 'Whether the bankruptcy notice was defective because it referred to different sums for the judgment debt and amount due.' 'Whether the petitioning creditor proved execution of the petition by authorised agents.' "Whether the debtor's application to the Credit Tribunal of Victoria affected the petition."]

Ratio Decidendi

The County Court order of 10 October 1995 was self-executing: on the debtor's failure to pay $30,671.20 into court by 24 October 1995, judgment took effect on 25 October 1995 for the petitioning creditor. The authenticated judgment was sufficient to make the creditor a person who had obtained a final judgment or final order under section 40(1)(g) of the Bankruptcy Act 1966, and the creditor was in a position to issue execution when the bankruptcy notice issued. The alleged defect in the bankruptcy notice was not made out because the higher sum was clearly the judgment debt plus specified interest, and the affidavits proved that the petition signatories held positions authorised under the...

Court Disposition

Sequestration order made against the debtor's estate.

Orders

  • ['The estate of the Debtor be sequestrated.' "The Petitioning Creditor's costs (including reserved costs) be taxed and paid in accordance with the Act."]