Re Perkins: Ex Parte Westpac Banking Corporation [1999] FCA 986

Re Perkins: Ex Parte Westpac Banking Corporation [1999] FCA 986

The Court accepted Ms Berry's evidence that she informed the respondent of the bankruptcy notice and left it at his feet after he refused to accept it, so service was effected consistently with Re Ditford. The Supreme Court Master's order was enforceable and had not been stayed or varied. The respondent committed the alleged act of bankruptcy on 14 July 1998 by failing to comply with the bankruptcy notice served on 23 June 1998. The applicant proved the matters in the petition, service of the petition, and that the petition debt remained owing. The respondent did not prove ability to pay his debts or any other sufficient cause why a sequestration order ought not be made.

Jurisdiction
Australia
Judgment Date
22 July 1999
Procedural Posture
Bankruptcy Creditor's Petition for Sequestration / Opposed Hearing and Final Orders
Outcome
Sequestration order made against the estate of the respondent as debtor.
Legal Topics
["creditor's Petition" 'service of Bankruptcy Notice' 'act of Bankruptcy' 'judgment Debt' 'ability to Pay Debts' 'other Sufficient Cause' 'sequestration Order' 'costs Priority']
['bankruptcy'] ["creditor's Petition" 'service of Bankruptcy Notice' 'act of Bankruptcy' 'judgment Debt' 'ability to Pay Debts' 'other Sufficient Cause' 'sequestration Order' 'costs Priority']

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Procedural Posture

Bankruptcy Creditor's Petition for Sequestration / Opposed Hearing and Final Orders

Legal Issues

  1. 1 ['Whether Bankruptcy Notice No VN 560 of 1997 was served on the respondent on 23 June 1998 and was properly served.' "Whether the judgment relied on by the applicant was enforceable and available as a basis for a bankruptcy notice or as a foundation of a creditor's petition." 'Whether the respondent was able to pay his debts.' 'Whether there was other sufficient cause why a sequestration order ought not be made.' "Whether the applicant's dealings with mortgage security affected its entitlement to a sequestration order."]

Ratio Decidendi

The Court accepted Ms Berry's evidence that she informed the respondent of the bankruptcy notice and left it at his feet after he refused to accept it, so service was effected consistently with Re Ditford. The Supreme Court Master's order was enforceable and had not been stayed or varied. The respondent committed the alleged act of bankruptcy on 14 July 1998 by failing to comply with the bankruptcy notice served on 23 June 1998. The applicant proved the matters in the petition, service of the petition, and that the petition debt remained owing. The respondent did not prove ability to pay his debts or any other sufficient cause why a sequestration order ought not be made.

Court Disposition

Sequestration order made against the estate of the respondent as debtor.

Orders

  • ['The estate of the respondent as debtor be sequestrated.' "The petitioning creditor's costs of and incidental to the application (including reserved costs) be taxed and paid in accordance with the Act." "The supporting creditor's costs in the petition, including reserved costs, be paid out of the estate of the...