Sarina, Ronald Grafton v. The Council of the Shire of Wollondilly [1980] FCA 175

Sarina, Ronald Grafton v. The Council of the Shire of Wollondilly [1980] FCA 175

The words 'able to pay his debts' in s. 52(2)(a) of the Bankruptcy Act 1966 require only ability, not willingness, to pay; and the power to dismiss the creditor’s petition under s.52(2) is discretionary, not mandatory.

Parties
Appellant and Cross Respondent (judgment Debtor): Ronald Grafton Sarina; Respondent and Cross Appellant (judgment Creditor): The Council of the Shire of Wollondilly
Jurisdiction
Australia
Judgment Date
17 November 1980
Procedural Posture
Appeal and Cross Appeal From Bankruptcy Proceedings / Judgment
Outcome
appeal and cross-appeal dismissed
Legal Topics
Interpretation of 'able to Pay His Debts' Under S. 52(2) Bankruptcy Act 1966, Discretionary Vs Mandatory Dismissal of Creditor's Petition
Bankruptcy Interpretation of 'able to Pay His Debts' Under S. 52(2) Bankruptcy Act 1966 Discretionary Vs Mandatory Dismissal of Creditor's Petition

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 8 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Ronald Grafton Sarina

Appellant and Cross Respondent (judgment Debtor)

The Council of the Shire of Wollondilly

Respondent and Cross Appellant (judgment Creditor)

Procedural Posture

Appeal and Cross Appeal From Bankruptcy Proceedings / Judgment

Legal Issues

  1. 1 Whether 'able to pay his debts' means 'able and willing to pay his debts' under s.52(2)(a) Bankruptcy Act 1966
  2. 2 Whether the phrase 'it may dismiss the petition' in s.52(2) is mandatory or discretionary

Ratio Decidendi

The words 'able to pay his debts' in s. 52(2)(a) of the Bankruptcy Act 1966 require only ability, not willingness, to pay; and the power to dismiss the creditor’s petition under s.52(2) is discretionary, not mandatory.

Court Disposition

appeal and cross-appeal dismissed

Orders

  • The appeal be dismissed.
  • The cross-appeal be dismissed.