Re Browbank, M. & Anor v. Ex parte Loniplus Pty Ltd [1985] FCA 556

Re Browbank, M. & Anor v. Ex parte Loniplus Pty Ltd [1985] FCA 556

For the purposes of s 41(3)(b) of the Bankruptcy Act, 1966, execution of the judgment should be treated as if it had been stayed because, had an application to set aside the judgment been made, a temporary stay would have been appropriate. Thus, the bankruptcy notice is invalid.

Parties
Judgment Debtor: Michael Ercowbank; Judgment Debtor: Neil Milles; Judgment Creditor: Lontiplus Pty. Limited
Jurisdiction
Australia
Judgment Date
29 October 1985
Procedural Posture
Application to Set Aside Bankruptcy Notice / Reasons for Judgment and Orders
Outcome
Bankruptcy notice set aside
Legal Topics
Bankruptcy Notice, Stay of Execution, Setting Aside Judgment
Bankruptcy Bankruptcy Notice Stay of Execution Setting Aside Judgment

Case Brief

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Parties

Michael Ercowbank

Judgment Debtor

Neil Milles

Judgment Debtor

Lontiplus Pty. Limited

Judgment Creditor

Procedural Posture

Application to Set Aside Bankruptcy Notice / Reasons for Judgment and Orders

Legal Issues

  1. 1 Whether a judgment entered irregularly and absent a formal stay should be treated as 'stayed' for the purposes of s 41(3)(b) of the Bankruptcy Act, 1966.
  2. 2 Whether the bankruptcy notice should be set aside due to an irregularly obtained judgment.

Ratio Decidendi

For the purposes of s 41(3)(b) of the Bankruptcy Act, 1966, execution of the judgment should be treated as if it had been stayed because, had an application to set aside the judgment been made, a temporary stay would have been appropriate. Thus, the bankruptcy notice is invalid.

Court Disposition

Bankruptcy notice set aside

Orders

  • Bankruptcy Notice No. is set aside.