Tanner, Re P. Elms Family Import-Export Property Enterprises Pty Ltd, Ex Parte [1986] FCA 658

Tanner, Re P. Elms Family Import-Export Property Enterprises Pty Ltd, Ex Parte [1986] FCA 658

There was never any communication by Mr. Tanner to the petitioning creditor as contemplated by s.40(1)(h) of the Bankruptcy Act 1966. Mr. Tanner merely indicated financial embarrassment or inability to pay at that time, but did not formally or deliberately notify suspension of payment of his debts. Furthermore, Mr. Tanner demonstrated he was solvent, with assets significantly exceeding liabilities. Therefore, the act of bankruptcy was not made out and the petition must be dismissed.

Parties
Debtor: Peter Thomas Tanner; Petitioning Creditor: The Elms Family Import-Export Property and Investment Enterprises Pty. Ltd.
Jurisdiction
Australia
Judgment Date
24 December 1986
Procedural Posture
Creditor's Petition for Sequestration Order (bankruptcy) / Final Judgment
Outcome
petition dismissed; sequestration order not made
Legal Topics
Act of Bankruptcy, Notice of Intention to Suspend Payment, Creditor's Petition, Solvency
Bankruptcy Act of Bankruptcy Notice of Intention to Suspend Payment Creditor's Petition Solvency

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Parties

Peter Thomas Tanner

Debtor

The Elms Family Import-Export Property and Investment Enterprises Pty. Ltd.

Petitioning Creditor

Procedural Posture

Creditor's Petition for Sequestration Order (bankruptcy) / Final Judgment

Legal Issues

  1. 1 Whether Mr. Tanner committed an act of bankruptcy under s.40(1)(h) of the Bankruptcy Act 1966 by giving notice to his creditor that he has suspended or is about to suspend payment of his debts
  2. 2 Whether Mr. Tanner is solvent and able to pay his debts

Ratio Decidendi

There was never any communication by Mr. Tanner to the petitioning creditor as contemplated by s.40(1)(h) of the Bankruptcy Act 1966. Mr. Tanner merely indicated financial embarrassment or inability to pay at that time, but did not formally or deliberately notify suspension of payment of his debts. Furthermore, Mr. Tanner demonstrated he was solvent, with assets significantly exceeding liabilities. Therefore, the act of bankruptcy was not made out and the petition must be dismissed.

Court Disposition

petition dismissed; sequestration order not made

Orders

  • The petition be dismissed.