Re Bachmann, C. v. Ex parte Doran, E. [1987] FCA 496

Re Bachmann, C. v. Ex parte Doran, E. [1987] FCA 496

The debtor discharged the onus of proving solvency and ability to pay debts by adducing evidence of sufficient assets, thus bringing him within s.52(2) of the Bankruptcy Act 1966. The petition was dismissed as the court exercised its discretion in favour of the debtor.

Parties
Petitioning Creditor: Ethel Doran; Debtor: Clemens Bachmann
Jurisdiction
Australia
Judgment Date
03 July 1987
Procedural Posture
Creditor's Petition / Final Judgment and Orders
Outcome
Petition dismissed; costs awarded as specified.
Legal Topics
Creditors Petition, Sequestration, Debtor Solvency, Costs Under Bankruptcy Act
Bankruptcy Creditors Petition Sequestration Debtor Solvency Costs Under Bankruptcy Act

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Parties

Ethel Doran

Petitioning Creditor

Clemens Bachmann

Debtor

Procedural Posture

Creditor's Petition / Final Judgment and Orders

Legal Issues

  1. 1 Whether a sequestration order ought to be made under a creditor’s petition when debtor is able but unwilling to pay debts
  2. 2 Whether debtor has discharged the onus of proving solvency under s 52(2) Bankruptcy Act 1966
  3. 3 Appropriate orders as to costs

Ratio Decidendi

The debtor discharged the onus of proving solvency and ability to pay debts by adducing evidence of sufficient assets, thus bringing him within s.52(2) of the Bankruptcy Act 1966. The petition was dismissed as the court exercised its discretion in favour of the debtor.

Court Disposition

Petition dismissed; costs awarded as specified.

Orders

  • The petition be dismissed.
  • Debtor to pay petitioning creditor's costs of and incidental to petition up to 17 June 1987 when the debtor's affidavit was served on the petitioning creditor.