Re Lawrence, G.C. & Anor v. Ex parte Burns, R.J. F. & Anor [1985] FCA 469

Re Lawrence, G.C. & Anor v. Ex parte Burns, R.J. F. & Anor [1985] FCA 469

The applicants are not entitled to the declaration sought, as a party to the deed cannot attest it and the rule that the deed is valid until declared void does not apply where attestation requirements are not met; however, the court exercises its discretion to extend the time for attestation.

Parties
Debtor: Geoffrey Charles Lawrence; Debtor: Desma Florence Lawrence; Applicant/assignee: Robert John Fred Burns; Applicant/assignee: Peter Ivan Felix Geroff
Jurisdiction
Australia
Judgment Date
19 September 1985
Procedural Posture
Bankruptcy Application / Application to Extend Time for Attestation and for Declaration as to Validity of Deed
Outcome
extension of time granted; declaration refused
Legal Topics
Deeds of Assignment, Attestation of Deeds, Judgment in Rem, Estoppel, Abuse of Process, Extension of Time
Bankruptcy Deeds of Assignment Attestation of Deeds Judgment in Rem Estoppel Abuse of Process Extension of Time

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Parties

Geoffrey Charles Lawrence

Debtor

Desma Florence Lawrence

Debtor

Robert John Fred Burns

Applicant/assignee

Peter Ivan Felix Geroff

Applicant/assignee

Procedural Posture

Bankruptcy Application / Application to Extend Time for Attestation and for Declaration as to Validity of Deed

Legal Issues

  1. 1 Whether a deed of assignment under Part X of the Bankruptcy Act is effective where the debtor's signature is witnessed by one of the assignees
  2. 2 Whether the previous judgment of Beaumont J. is binding (judgment in rem)
  3. 3 Whether attacking the prior judgment is an abuse of process

Ratio Decidendi

The applicants are not entitled to the declaration sought, as a party to the deed cannot attest it and the rule that the deed is valid until declared void does not apply where attestation requirements are not met; however, the court exercises its discretion to extend the time for attestation.

Court Disposition

extension of time granted; declaration refused

Orders

  • The time for attestation of the deed of assignment executed by the applicants and by the debtors on 8 October 1984 be extended to 10 October 1985.