Re McCollum, I.M. v. Ex parte McCollum, I.M. [1987] FCA 90

Re McCollum, I.M. v. Ex parte McCollum, I.M. [1987] FCA 90

The misdescription of the claim in the writ meant there was no consideration for the judgment debt; as in Corney v. Brien, the true liability was for a different consideration (here, if any, under a guarantee, not for goods sold and delivered). Therefore, there was no real debt supporting the sequestration order, warranting annulment.

Parties
Bankrupt / Applicant: Ian Malcolm McCollum; Respondent: Judgment Creditor
Jurisdiction
Australia
Judgment Date
05 March 1987
Procedural Posture
Bankruptcy Annulment Application / Application for Annulment of Sequestration Order
Outcome
Sequestration order annulled
Legal Topics
Annulment of Sequestration Order, Going Behind Judgment, Existence of Real Debt
Bankruptcy Annulment of Sequestration Order Going Behind Judgment Existence of Real Debt

Case Brief

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Parties

Ian Malcolm McCollum

Bankrupt / Applicant

Judgment Creditor

Respondent

Procedural Posture

Bankruptcy Annulment Application / Application for Annulment of Sequestration Order

Legal Issues

  1. 1 Whether the bankruptcy sequestration order should be annulled under s.154(1) Bankruptcy Act 1966 on the ground that the order ought not to have been made
  2. 2 Whether the default judgment was based on a real debt
  3. 3 Whether misdescription of the cause of action in the writ invalidates the judgment debt

Ratio Decidendi

The misdescription of the claim in the writ meant there was no consideration for the judgment debt; as in Corney v. Brien, the true liability was for a different consideration (here, if any, under a guarantee, not for goods sold and delivered). Therefore, there was no real debt supporting the sequestration order, warranting annulment.

Court Disposition

Sequestration order annulled

Orders

  • The sequestration order made on 12 August 1985 be annulled.
  • The judgment creditor pay one half of the applicant's costs of the application to annul, to be taxed.