Hayward v Scott as Trustee of the Debtor Estate of Hayward [2013] FCA 421

Procedural Posture

Bankruptcy Application Concerning a Personal Insolvency Agreement and Maintenance Related Debt / Final Judgment on Application for Declaration or Alternative Order

Legal Issues

1. 1 ["Whether the claim arising under the Supreme Court of South Australia consent judgment was a debt that would be released upon fulfilment of Mr Hayward's personal insolvency agreement." 'Whether the consent judgment created a liability under a maintenance agreement or maintenance order within s 153(2)(c) of the Bankruptcy Act 1966 (Cth).' 'Whether the Court had power, in relation to a personal insolvency agreement, to order release from liability to pay arrears under a maintenance agreement or maintenance order pursuant to s 230 and s 153(2A) of the Bankruptcy Act 1966 (Cth).' 'If such a power existed, whether it should be exercised in favour of Mr Hayward.']

Ratio Decidendi

The debt owed by Mr Hayward to Ms Thornton was the judgment debt created by the Supreme Court of South Australia consent judgment. The consent giving rise to that judgment had not been shown not to be in writing, was between parties to a marriage, concerned arrears of child maintenance, and was registered in or approved by the Supreme Court of South Australia by being the subject of its judgment. It was therefore a maintenance agreement within s 5(1) of the Bankruptcy Act 1966 (Cth). The liability under that maintenance agreement, including the judgment debt, would not be released on discharge from bankruptcy by reason of s 153(2)(c), and therefore s 230(3) prevented the personal...

Court Disposition

Application dismissed; no order as to costs.

Orders

• ['The application be dismissed.' 'There be no order as to the costs of the proceeding.']