Opie v Opie [1951] HCA 47

Opie v Opie [1951] HCA 47

The bankruptcy notice was invalid because the alleged Supreme Court judgment entered pursuant to s. 13A of the Deserted Wives and Children Act was not a final judgment obtained in an action, nor a final order, within s. 52 (j) of the Bankruptcy Act 1924-1950 Cth.; further, the material before the Bankruptcy Court did not evidence a judgment of the Supreme Court but only the magistrate's certificate. The failure to comply with the notice therefore could not support the sequestration order.

Jurisdiction
Australia
Procedural Posture
Bankruptcy Appeal / Appeals From Federal Court of Bankruptcy Orders Dismissing a Motion to Set Aside a Bankruptcy Notice and Sequestrating the Appellant's Estate
Outcome
Appeals allowed.
Legal Topics
['bankruptcy Notice' 'final Judgment or Final Order' 'maintenance Arrears' 'sequestration Order' "judgment Entered on Magistrate's Certificate"]
['bankruptcy Law' 'family Maintenance' 'civil Procedure'] ['bankruptcy Notice' 'final Judgment or Final Order' 'maintenance Arrears' 'sequestration Order' "judgment Entered on Magistrate's Certificate"]

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Bankruptcy Appeal / Appeals From Federal Court of Bankruptcy Orders Dismissing a Motion to Set Aside a Bankruptcy Notice and Sequestrating the Appellant's Estate

Legal Issues

  1. 1 ['Whether a bankruptcy notice founded on a judgment entered pursuant to s. 13A of the Deserted Wives and Children Act 1901-1939 N.S.W. was valid under s. 52 (j) of the Bankruptcy Act 1924-1950 Cth.' 'Whether the judgment referred to in the bankruptcy notice was a final judgment or final order within the meaning of s. 52 (j) of the Bankruptcy Act 1924-1950 Cth.' 'Whether there was sufficient evidence before the Federal Court of Bankruptcy of a judgment of the Supreme Court.' 'Whether the bankruptcy notice was invalid because it specified £261 12s. 6d. rather than £261.']

Ratio Decidendi

The bankruptcy notice was invalid because the alleged Supreme Court judgment entered pursuant to s. 13A of the Deserted Wives and Children Act was not a final judgment obtained in an action, nor a final order, within s. 52 (j) of the Bankruptcy Act 1924-1950 Cth.; further, the material before the Bankruptcy Court did not evidence a judgment of the Supreme Court but only the magistrate's certificate. The failure to comply with the notice therefore could not support the sequestration order.

Court Disposition

Appeals allowed.

Orders

  • ['Order dismissing motion to set aside bankruptcy notice set aside.' 'In lieu thereof order that motion be allowed without costs.' 'Sequestration order dated 19th December 1950 set aside.' 'In lieu thereof order that petition be dismissed without costs.' 'No order as to costs of either appeal.']