Re McGettigan, John Ex Parte Lancaster, Christopher John [1996] FCA 87

Re McGettigan, John Ex Parte Lancaster, Christopher John [1996] FCA 87

The petitioning creditor bore the onus of proving service of the bankruptcy notice. On the evidence, three competing hypotheses remained available: the creditor and Ms Brasier lied about service, they were truthful but mistaken as to the date, or the debtor fabricated an alibi. The Court was not reasonably satisfied that any one hypothesis was more probable than the others, and therefore the creditor had not discharged the onus of proving service. The petition was dismissed.

Jurisdiction
Australia
Judgment Date
28 February 1996
Procedural Posture
Creditor's Petition for a Sequestration Order in Bankruptcy / Judgment on Debtor's Notice of Opposition to the Making of a Sequestration Order Disputing Service of the Bankruptcy Notice
Outcome
The petition was dismissed with no order as to costs.
Legal Topics
['service of Bankruptcy Notice' "creditor's Petition" 'sequestration Order' 'burden of Proof' 'standard of Proof' 'witness Credibility']
['bankruptcy' 'civil Procedure' 'evidence'] ['service of Bankruptcy Notice' "creditor's Petition" 'sequestration Order' 'burden of Proof' 'standard of Proof' 'witness Credibility']

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Procedural Posture

Creditor's Petition for a Sequestration Order in Bankruptcy / Judgment on Debtor's Notice of Opposition to the Making of a Sequestration Order Disputing Service of the Bankruptcy Notice

Legal Issues

  1. 1 ['Whether the petitioning creditor proved service of the bankruptcy notice on the debtor.' 'Whether the Court was reasonably satisfied, having regard to the seriousness of bankruptcy consequences, that service occurred on 27 October 1994.']

Ratio Decidendi

The petitioning creditor bore the onus of proving service of the bankruptcy notice. On the evidence, three competing hypotheses remained available: the creditor and Ms Brasier lied about service, they were truthful but mistaken as to the date, or the debtor fabricated an alibi. The Court was not reasonably satisfied that any one hypothesis was more probable than the others, and therefore the creditor had not discharged the onus of proving service. The petition was dismissed.

Court Disposition

The petition was dismissed with no order as to costs.

Orders

  • ['That the petition be dismissed.' 'That there be no order as to costs.']