Re Hutton, Lynette Denise & Anor Ex Parte; Boral Montoro Pty Ltd (trading as Boral Roof Tiles) & Anor [1995] FCA 1091

Re Hutton, Lynette Denise & Anor Ex Parte; Boral Montoro Pty Ltd (trading as Boral Roof Tiles) & Anor [1995] FCA 1091

Because Boral Montoro Pty Ltd claimed a debt of the requisite amount and there was an existing Magistrates Court judgment evidencing the debt claimed to have existed at the date of the act of bankruptcy, and because the disputed indebtedness and matters concerning possible setting aside of the default judgment were matters for consideration at the hearing of the petition rather than on the substitution application, Boral Montoro Pty Ltd should be substituted as petitioning creditor.

Jurisdiction
Australia
Judgment Date
15 December 1995
Procedural Posture
Bankruptcy Application for Substitution of Petitioning Creditor / Application Heard and Orders Made
Outcome
Application granted; Boral Montoro Pty Ltd substituted as petitioning creditor.
Legal Topics
['substitution of Petitioning Creditor' "creditor's Petition" 'act of Bankruptcy' 'disputed Debt' 'default Judgment']
['bankruptcy'] ['substitution of Petitioning Creditor' "creditor's Petition" 'act of Bankruptcy' 'disputed Debt' 'default Judgment']

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Procedural Posture

Bankruptcy Application for Substitution of Petitioning Creditor / Application Heard and Orders Made

Legal Issues

  1. 1 ['Whether Boral Montoro Pty Ltd should be substituted as petitioning creditor for Queensland Welded Mesh Pty Ltd in petition number 425 of 1995.' 'Whether, on an application for substitution, the proposed substituting creditor must establish the existence of its debt at that stage where the debtors dispute indebtedness and have applied to set aside a default judgment.']

Ratio Decidendi

Because Boral Montoro Pty Ltd claimed a debt of the requisite amount and there was an existing Magistrates Court judgment evidencing the debt claimed to have existed at the date of the act of bankruptcy, and because the disputed indebtedness and matters concerning possible setting aside of the default judgment were matters for consideration at the hearing of the petition rather than on the substitution application, Boral Montoro Pty Ltd should be substituted as petitioning creditor.

Court Disposition

Application granted; Boral Montoro Pty Ltd substituted as petitioning creditor.

Orders

  • ['Boral Montoro Pty Ltd ACN 002 944 694, trading as Boral Roof Tiles, be substituted as petitioning creditor for Queensland Welded Mesh Pty Ltd ACN 010 471 741 in petition number 425 of 1995.' "The substituting petitioning creditor's costs of today be its costs in the petition."]