Allison v Murphy [2021] FCAFC 232

Allison v Murphy [2021] FCAFC 232

Even if payment was tendered from the trust account, the creditor was not obliged to accept payment after an act of bankruptcy and the debt remained outstanding; primary judge's error in treating funds as unavailable due to sequestration order did not alter the outcome as payment was not accepted.

Jurisdiction
Australia
Judgment Date
20 December 2021
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed with costs; extension of time granted to bring appeal.
Legal Topics
['sequestration Order' "solicitor's Trust Account" 'payment of Debt' 'review Process' 'affidavit of Debt' 'statutory Minimum' 'solvency']
['bankruptcy' 'insolvency'] ['sequestration Order' "solicitor's Trust Account" 'payment of Debt' 'review Process' 'affidavit of Debt' 'statutory Minimum' 'solvency']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ["Whether payment of funds from the solicitor's trust account discharged the debt so as to warrant dismissal of the creditor's petition" 'Whether the judge conducted a de novo hearing and correctly disregarded the existence of the sequestration order for purposes of the review' 'Whether the procedure relating to the filing of the affidavit of debt complied with statutory requirements' 'Whether the creditor was obliged to accept payment tendered after an act of bankruptcy']

Ratio Decidendi

Even if payment was tendered from the trust account, the creditor was not obliged to accept payment after an act of bankruptcy and the debt remained outstanding; primary judge's error in treating funds as unavailable due to sequestration order did not alter the outcome as payment was not accepted.

Court Disposition

Appeal dismissed with costs; extension of time granted to bring appeal.

Orders

  • ['Extension of time to allow the appeal to be heard.' 'Appeal dismissed.' "Appellant to pay respondent's costs of and incidental to the appeal to be assessed if not agreed."]