Beson, Robert v Dean, Robert William [1997] FCA 1320

Beson, Robert v Dean, Robert William [1997] FCA 1320

Because the judgment debt had been assigned to the respondent, and the respondent required either leave or a further order of the Supreme Court of New South Wales before he could enforce the judgment, he was not in a position to issue immediate execution. The judgment was therefore deemed to be one the execution of which had been stayed for the purposes of s 41(3)(b) of the Bankruptcy Act 1966 (Cth), so the bankruptcy notice was issued contrary to that provision and had to be set aside.

Jurisdiction
Australia
Judgment Date
01 December 1997
Procedural Posture
Bankruptcy Application / Application to Set Aside a Bankruptcy Notice Or, Alternatively, for an Extension of Time Within Which to Comply With the Notice
Outcome
The bankruptcy notice was set aside.
Legal Topics
['bankruptcy Notice' 'execution of Judgment' 'stay of Execution' 'assignment of Judgment Debt' 'irregularities of Form in Bankruptcy Notice']
['bankruptcy' 'civil Procedure'] ['bankruptcy Notice' 'execution of Judgment' 'stay of Execution' 'assignment of Judgment Debt' 'irregularities of Form in Bankruptcy Notice']

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Procedural Posture

Bankruptcy Application / Application to Set Aside a Bankruptcy Notice Or, Alternatively, for an Extension of Time Within Which to Comply With the Notice

Legal Issues

  1. 1 ['Whether the bankruptcy notice was invalid because, at the time of the application for its issue, execution of the judgment had been stayed within the meaning of s 41(3)(b) of the Bankruptcy Act 1966 (Cth).' 'Whether the bankruptcy notice was invalid because it referred to s 52 rather than s 12 of the Conveyancing Act 1919 (NSW).' 'Whether the bankruptcy notice was invalid because it claimed interest by reference to s 94 rather than s 95 of the Supreme Court Act 1970 (NSW).' 'Whether time for compliance with the bankruptcy notice should be extended pending proceedings in other courts.']

Ratio Decidendi

Because the judgment debt had been assigned to the respondent, and the respondent required either leave or a further order of the Supreme Court of New South Wales before he could enforce the judgment, he was not in a position to issue immediate execution. The judgment was therefore deemed to be one the execution of which had been stayed for the purposes of s 41(3)(b) of the Bankruptcy Act 1966 (Cth), so the bankruptcy notice was issued contrary to that provision and had to be set aside.

Court Disposition

The bankruptcy notice was set aside.

Orders

  • ['The bankruptcy notice in this matter be set aside.']