Cooley, T.L. v Westpac Banking Corporation [1995] FCA 282

Cooley, T.L. v Westpac Banking Corporation [1995] FCA 282

As the debtor admitted a substantial liability to the petitioning creditor under a personal guarantee in his verified statement of affairs, and made no real challenge to the creditor’s evidence or cross-examination, the Court could infer, notwithstanding deficiencies in affidavit evidence or hearsay, that the requisite demand was made and the debt existed; all statutory requirements for a sequestration order were met.

Parties
Debtor: Terrence Lambert Cooley; Creditor: Westpac Banking Corporation
Jurisdiction
Australia
Judgment Date
03 May 1995
Procedural Posture
Bankruptcy Petition / Final Hearing and Judgment
Outcome
Sequestration order made against estate of debtor.
Legal Topics
Sequestration Order, Personal Guarantee, Acts of Bankruptcy, Proof of Debt, Demand Under Guarantee, Admissibility of Evidence in Bankruptcy Proceedings
Bankruptcy Sequestration Order Personal Guarantee Acts of Bankruptcy Proof of Debt Demand Under Guarantee Admissibility of Evidence in Bankruptcy Proceedings

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Parties

Terrence Lambert Cooley

Debtor

Westpac Banking Corporation

Creditor

Procedural Posture

Bankruptcy Petition / Final Hearing and Judgment

Legal Issues

  1. 1 Whether the petitioning creditor established a debt owing under a guarantee sufficient to support a bankruptcy sequestration order
  2. 2 Whether a valid demand was made on the debtor pursuant to the guarantee
  3. 3 Whether admissible evidence was adduced to prove the requisite elements for a sequestration order

Ratio Decidendi

As the debtor admitted a substantial liability to the petitioning creditor under a personal guarantee in his verified statement of affairs, and made no real challenge to the creditor’s evidence or cross-examination, the Court could infer, notwithstanding deficiencies in affidavit evidence or hearsay, that the requisite demand was made and the debt existed; all statutory requirements for a sequestration order were met.

Court Disposition

Sequestration order made against estate of debtor.

Orders

  • A sequestration order be made against the estate of the debtor Terrence Lambert Cooley.
  • The petitioning creditor's costs of and incidental to the petition including any reserved costs be taxed and paid in accordance with statute.