2000 Olympic Games Pty Ltd v Daly [2000] FCA 1286

2000 Olympic Games Pty Ltd v Daly [2000] FCA 1286

Substitution was appropriate because s 49 is directed to allowing a substituted creditor to continue an existing bankruptcy proceeding, and the relevant question was whether there was a petition alleging an act of bankruptcy on which the substituted creditor should be permitted to rely, not whether the original petitioner would ultimately prove its disputed debt at the hearing. Since there was no question as to the act of bankruptcy and the proposed substituted creditor had an undisputed judgment debt, proof of the original petitioning creditor's debt was not required before substitution.

Jurisdiction
Australia
Judgment Date
06 September 2000
Procedural Posture
Bankruptcy / Application to Substitute a Creditor as Petitioner
Outcome
Application granted; the proposed substituted petitioning creditor was substituted.
Legal Topics
['substitution of Petitioning Creditor' "creditor's Petition" 'act of Bankruptcy' 'disputed Debt' 'bankruptcy Act 1966 (cth) S 49']
['bankruptcy'] ['substitution of Petitioning Creditor' "creditor's Petition" 'act of Bankruptcy' 'disputed Debt' 'bankruptcy Act 1966 (cth) S 49']

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Procedural Posture

Bankruptcy / Application to Substitute a Creditor as Petitioner

Legal Issues

  1. 1 ["Whether a proposed substituted petitioning creditor should be substituted where the existing petition is opposed on the basis that the original petitioning creditor's alleged debt is disputed or does not fall within s 44(1) of the Bankruptcy Act 1966 (Cth)." "Whether proof of the original petitioning creditor's debt at the time of institution is required before substitution can be ordered."]

Ratio Decidendi

Substitution was appropriate because s 49 is directed to allowing a substituted creditor to continue an existing bankruptcy proceeding, and the relevant question was whether there was a petition alleging an act of bankruptcy on which the substituted creditor should be permitted to rely, not whether the original petitioner would ultimately prove its disputed debt at the hearing. Since there was no question as to the act of bankruptcy and the proposed substituted creditor had an undisputed judgment debt, proof of the original petitioning creditor's debt was not required before substitution.

Court Disposition

Application granted; the proposed substituted petitioning creditor was substituted.

Orders

  • ['The proposed substituted petitioning creditor be substituted.' 'Costs be costs in the petition.']