Gargan, Peter Alexander v Official Trustee in Bankruptcy & Ors [1997] FCA 320

Gargan, Peter Alexander v Official Trustee in Bankruptcy & Ors [1997] FCA 320

The appeals were dismissed because the Federal Court could not entertain the attempted appeals from Moynihan J's Supreme Court decision in the ordinary course and, in any event, no basis was shown to disturb it; no evidence showed that the sequestration order ought not to have been made or justified reconsideration after the appellant had not opposed it; and Kiefel J correctly refused an inquiry under s. 179 because no basis for such an order was established and the Trustee was justified in having regard to Thomas J's judgment and the creditors' attitude.

Jurisdiction
Australia
Judgment Date
30 April 1997
Procedural Posture
Bankruptcy Appeals / Appeal to the Federal Court of Australia From Decisions of Moynihan J and Kiefel J, With an Application to Amend to Challenge an Additional Judgment
Outcome
Appeals dismissed with costs; certain respondents struck out as inappropriately joined.
Legal Topics
['sequestration Order' 'annulment of Bankruptcy' 'inquiry Into Trustee Conduct Under S. 179 of the Bankruptcy Act 1966' 'standing After Bankruptcy' 'effect of Bankruptcy on Prior Supreme Court Judgment' 'joinder of Respondents' 'fresh Evidence on Appeal']
['bankruptcy' 'civil Procedure' 'judicial Review' 'partnership and Trust Property'] ['sequestration Order' 'annulment of Bankruptcy' 'inquiry Into Trustee Conduct Under S. 179 of the Bankruptcy Act 1966' 'standing After Bankruptcy' 'effect of Bankruptcy on Prior Supreme Court Judgment' 'joinder of Respondents' 'fresh Evidence on Appeal']

Case Brief

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Procedural Posture

Bankruptcy Appeals / Appeal to the Federal Court of Australia From Decisions of Moynihan J and Kiefel J, With an Application to Amend to Challenge an Additional Judgment

Legal Issues

  1. 1 ["Whether the appellant's bankruptcy abrogated the judgment of Thomas J in the Supreme Court of Queensland concerning partnership dissolution, trust property and specific performance." "Whether the Federal Court could entertain appeals from Moynihan J's Supreme Court of Queensland decision on judicial review." 'Whether the sequestration order should be annulled.' 'Whether an inquiry should be ordered under s. 179 of the Bankruptcy Act 1966 into the conduct of the Trustee.' 'Whether fresh evidence tendered on appeal affected the judgments under appeal.' 'Whether certain respondents were inappropriately joined.']

Ratio Decidendi

The appeals were dismissed because the Federal Court could not entertain the attempted appeals from Moynihan J's Supreme Court decision in the ordinary course and, in any event, no basis was shown to disturb it; no evidence showed that the sequestration order ought not to have been made or justified reconsideration after the appellant had not opposed it; and Kiefel J correctly refused an inquiry under s. 179 because no basis for such an order was established and the Trustee was justified in having regard to Thomas J's judgment and the creditors' attitude.

Court Disposition

Appeals dismissed with costs; certain respondents struck out as inappropriately joined.

Orders

  • ['The appeals be dismissed with costs.' 'The reserved costs in relation to Mr Barry Michael Johnson be included, so that he is entitled to have those costs also paid by the appellant.' 'Each of the names of the fourth and fifth respondents mentioned in matter number 113 and the fourth, fifth and sixth respondents...