Re Malouf, Gregory & Ors; Ex Parte Commonwealth Bank of Australia Davridge Pty Ltd v Commonwealth Bank of Australia [1998] FCA 35

Re Malouf, Gregory & Ors; Ex Parte Commonwealth Bank of Australia Davridge Pty Ltd v Commonwealth Bank of Australia [1998] FCA 35

The debtors failed to establish fresh facts constituting fraud or that any false evidence materially affected the Commercial Division judgment. Their case largely repeated previous arguments already dismissed in earlier applications. There was no factual basis to support an allegation of fraud by the Bank in obtaining the judgment, and no miscarriage of justice established. Accordingly, the Court refused to go behind the judgment and granted sequestration orders.

Jurisdiction
Australia
Judgment Date
03 February 1998
Procedural Posture
Bankruptcy and Corporations Law Proceedings / Judgment Following Hearing of Creditor's Petition and Application to Set Aside Statutory Demand
Outcome
Creditor's petition granted; sequestration orders made; application to set aside statutory demand dismissed; costs awarded to creditor/respondent.
Legal Topics
["creditor's Petition" 'statutory Demand' 'fraud in Judgment' 'going Behind Judgment' 'sequestration' 'costs']
['bankruptcy' 'corporate Insolvency'] ["creditor's Petition" 'statutory Demand' 'fraud in Judgment' 'going Behind Judgment' 'sequestration' 'costs']

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Procedural Posture

Bankruptcy and Corporations Law Proceedings / Judgment Following Hearing of Creditor's Petition and Application to Set Aside Statutory Demand

Legal Issues

  1. 1 ['Whether the Court should go behind the Commercial Division judgment on the basis that it was obtained by fraud' "Whether there was 'fresh evidence' of fraud warranting reopening the judgment" 'Whether sequestration orders should be made against the debtors' 'Whether statutory demand against Davridge Pty Limited should be set aside']

Ratio Decidendi

The debtors failed to establish fresh facts constituting fraud or that any false evidence materially affected the Commercial Division judgment. Their case largely repeated previous arguments already dismissed in earlier applications. There was no factual basis to support an allegation of fraud by the Bank in obtaining the judgment, and no miscarriage of justice established. Accordingly, the Court refused to go behind the judgment and granted sequestration orders.

Court Disposition

Creditor's petition granted; sequestration orders made; application to set aside statutory demand dismissed; costs awarded to creditor/respondent.

Orders

  • ['The estate of each of the debtors be sequestrated.' "The petitioning creditor's costs, including any reserved costs, be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth)." "Davridge Pty Limited's application be dismissed." "The applicant (Davridge Pty Limited) pay the respondent's costs."]