Re Wong, Sam Ling; Ex Parte Wong, Sam Ling v Boardwalk Regency Corporation [1996] FCA 99

Re Wong, Sam Ling; Ex Parte Wong, Sam Ling v Boardwalk Regency Corporation [1996] FCA 99

The debtor's conduct and statements on 29 and 31 January 1996, including ceasing communication with his solicitor when he knew a Supreme Court bailiff wished to serve him with process, supported an inference that he departed Australia with the intent required by s78 to avoid payment of the creditor's debt and delay bankruptcy proceedings. However, maintaining the warrant deterred his return to Australia, prejudiced him and his company, and did not advance the creditor's purposes; adequate protection could be provided by requiring written authority for Flower & Hart to accept service of further bankruptcy proceedings. The extension of time for compliance with the bankruptcy notice was...

Jurisdiction
Australia
Judgment Date
27 February 1996
Procedural Posture
Bankruptcy / Application to Set Aside Warrant for Arrest Under S78 of the Bankruptcy Act 1966 (cth) and Application to Extend Time for Compliance With Bankruptcy Notice
Outcome
Warrant set aside on condition; application to extend time until after the Supreme Court application dismissed; time for compliance with the bankruptcy notice extended only to 4.30 pm on 28 February 1996; debtor ordered to pay costs.
Legal Topics
['warrant for Arrest of Debtor' 'bankruptcy Notice' 'extension of Time for Compliance' 'absconding Debtor' 'application to Set Aside Judgment']
['bankruptcy'] ['warrant for Arrest of Debtor' 'bankruptcy Notice' 'extension of Time for Compliance' 'absconding Debtor' 'application to Set Aside Judgment']

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Procedural Posture

Bankruptcy / Application to Set Aside Warrant for Arrest Under S78 of the Bankruptcy Act 1966 (cth) and Application to Extend Time for Compliance With Bankruptcy Notice

Legal Issues

  1. 1 ['Whether the warrant for the arrest of Sam Ling Wong issued on 1 February 1996 under s78 of the Bankruptcy Act 1966 (Cth) should be set aside.' 'Whether the debtor had absconded, or was about to abscond, with a view to avoiding payment of debts or preventing or delaying bankruptcy proceedings.' "Whether the time for compliance with the bankruptcy notice should be extended until twenty-one days after the hearing and determination of the Supreme Court of Queensland application to set aside the creditor's judgment." 'Whether the application to set aside the judgment was bona fide and being prosecuted with due diligence.']

Ratio Decidendi

The debtor's conduct and statements on 29 and 31 January 1996, including ceasing communication with his solicitor when he knew a Supreme Court bailiff wished to serve him with process, supported an inference that he departed Australia with the intent required by s78 to avoid payment of the creditor's debt and delay bankruptcy proceedings. However, maintaining the warrant deterred his return to Australia, prejudiced him and his company, and did not advance the creditor's purposes; adequate protection could be provided by requiring written authority for Flower & Hart to accept service of further bankruptcy proceedings. The extension of time for compliance with the bankruptcy notice was...

Court Disposition

Warrant set aside on condition; application to extend time until after the Supreme Court application dismissed; time for compliance with the bankruptcy notice extended only to 4.30 pm on 28 February 1996; debtor ordered to pay costs.

Orders

  • ['Upon the debtor Sam Ling Wong filing in court a written authority, or sending to the court by facsimile a copy of such written authority pending filing of the same, authorising Flower & Hart solicitors of Brisbane to accept service of any bankruptcy proceedings issued by the creditor Boardwalk Regency Corporation...