Re John Wayne Cornish Ex Parte Stephen Joesph English [1984] FCA 409

Re John Wayne Cornish Ex Parte Stephen Joesph English [1984] FCA 409

The bankruptcy resulting from Mr Cornish's own petition was annulled because the Court inferred from the evidence that the debtor's purpose in presenting the petition was to prevent the creditor from obtaining a sequestration order on a pending petition and further to shorten the period of relation back, thereby potentially prejudicing creditors. The Court found this to be an abuse of the process and thus grounds for annulment under s.154(1)(a) of the Bankruptcy Act 1966. A sequestration order was then made on the creditor's petition.

Parties
Debtor: John Wayne Cornish; Substituted Petitioning Creditor: Stephen Joseph English; Original Petitioning Creditor: Mallinson Sales Pty Limited trading as Mallinson Building Supplies
Jurisdiction
Australia
Judgment Date
19 November 1984
Procedural Posture
Bankruptcy / Hearing of Application for Annulment and Pending Petition
Outcome
bankruptcy arising from debtor's petition annulled; sequestration order made on creditor's petition
Legal Topics
Annulment of Bankruptcy, Relation Back Period, Sequestration Order, Abuse of Process
Bankruptcy Annulment of Bankruptcy Relation Back Period Sequestration Order Abuse of Process

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Parties

John Wayne Cornish

Debtor

Stephen Joseph English

Substituted Petitioning Creditor

Mallinson Sales Pty Limited trading as Mallinson Building Supplies

Original Petitioning Creditor

Procedural Posture

Bankruptcy / Hearing of Application for Annulment and Pending Petition

Legal Issues

  1. 1 Whether the debtor's bankruptcy resulting from his own petition should be annulled under s. 154(1)(a) of the Bankruptcy Act 1966 due to abuse of process and intention to shorten the relation back period.
  2. 2 Whether a sequestration order should be made on the creditor's petition.

Ratio Decidendi

The bankruptcy resulting from Mr Cornish's own petition was annulled because the Court inferred from the evidence that the debtor's purpose in presenting the petition was to prevent the creditor from obtaining a sequestration order on a pending petition and further to shorten the period of relation back, thereby potentially prejudicing creditors. The Court found this to be an abuse of the process and thus grounds for annulment under s.154(1)(a) of the Bankruptcy Act 1966. A sequestration order was then made on the creditor's petition.

Court Disposition

bankruptcy arising from debtor's petition annulled; sequestration order made on creditor's petition

Orders

  • The bankruptcy of John Wayne Cornish resulting from the presentation of the petition in matter No. 701 of 1984 on 5 November 1984 is annulled.
  • The debtor is to pay the applicant's costs of the application for annulment, such costs to form part of the costs in matter No. 134 of 1984.