Avco Access Ltd v Frendo, Carmel [1998] FCA 1734

Avco Access Ltd v Frendo, Carmel [1998] FCA 1734

The respondent failed to prove that the alleged payments were made. Documentary and testimonial evidence did not support the existence of such payments. The judgment debt was founded on a real debt, and the respondent's failure to comply with the bankruptcy notice constituted an act of bankruptcy. Accordingly, the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
21 December 1998
Procedural Posture
Bankruptcy Application / Application to Set Aside Sequestration Order
Outcome
Respondent's motion dismissed; sequestration order stands.
Legal Topics
['sequestration Orders' 'judgment Debt' 'going Behind Judgment Debt' 'default Judgment']
['bankruptcy'] ['sequestration Orders' 'judgment Debt' 'going Behind Judgment Debt' 'default Judgment']

Source-derived case record

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Procedural Posture

Bankruptcy Application / Application to Set Aside Sequestration Order

Legal Issues

  1. 1 ['Whether the debt underlying the judgment was paid' 'Whether there are substantial reasons to go behind the judgment debt' 'Whether the respondent committed an act of bankruptcy by failing to comply with the bankruptcy notice']

Ratio Decidendi

The respondent failed to prove that the alleged payments were made. Documentary and testimonial evidence did not support the existence of such payments. The judgment debt was founded on a real debt, and the respondent's failure to comply with the bankruptcy notice constituted an act of bankruptcy. Accordingly, the sequestration order must stand.

Court Disposition

Respondent's motion dismissed; sequestration order stands.

Orders

  • ["The respondent's motion filed 1 June 1998 be dismissed." "The applicant creditor's costs of and incidental to the motion including reserved costs be taxed and be part of its costs of the petition."]