Kerr, Re D.A. Bannon, Ex Parte R.A. & Ors [1986] FCA 296

Kerr, Re D.A. Bannon, Ex Parte R.A. & Ors [1986] FCA 296

The proper approach is to consider each proof of debt on its merits in light of documentary and oral evidence to determine whether the debt was personal to the debtor and thus provable, and whether any agreement as to interest or costs has been made out. Absence of sufficient evidence for certain claims or components (e.g., interest, costs, debts owed by companies) warrants rejection of those parts of the proofs.

Parties
Debtor: David Armstrong Kerr; Applicant: Roderick Alfred Bannon; Applicant: Brian John Bannon; Applicant: Gabelle Pty Ltd; Applicant: Tanta Pty Ltd; Applicant: Toulon Pty Ltd; Applicant: Robert James Semmens
Jurisdiction
Australia
Judgment Date
24 July 1986
Procedural Posture
Application for Review of Trustee's Decision Under Bankruptcy Act / Hearing De Novo on Application for Review of Rejection of Proofs of Debt
Outcome
Parties' applications for review largely granted; certain proofs and amounts admitted, others rejected.
Legal Topics
Proof of Debt, Review of Trustee's Decision, Deed of Arrangement, Interest on Debts
Bankruptcy Proof of Debt Review of Trustee's Decision Deed of Arrangement Interest on Debts

Case Brief

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Parties

David Armstrong Kerr

Debtor

Roderick Alfred Bannon

Applicant

Brian John Bannon

Applicant

Gabelle Pty Ltd

Applicant

Tanta Pty Ltd

Applicant

Toulon Pty Ltd

Applicant

Robert James Semmens

Applicant

Procedural Posture

Application for Review of Trustee's Decision Under Bankruptcy Act / Hearing De Novo on Application for Review of Rejection of Proofs of Debt

Legal Issues

  1. 1 Whether the trustee correctly rejected the creditors' proofs of debt under a deed of arrangement
  2. 2 Whether the court may review the trustee's decision after termination of the deed
  3. 3 Whether the debts and interest claimed are provable against the debtor

Ratio Decidendi

The proper approach is to consider each proof of debt on its merits in light of documentary and oral evidence to determine whether the debt was personal to the debtor and thus provable, and whether any agreement as to interest or costs has been made out. Absence of sufficient evidence for certain claims or components (e.g., interest, costs, debts owed by companies) warrants rejection of those parts of the proofs.

Court Disposition

Parties' applications for review largely granted; certain proofs and amounts admitted, others rejected.

Orders

  • The proof of debt by Gabelle Pty Ltd for $30,000 plus $5,000 interest admitted.
  • Proofs of debt by Roderick and Brian Bannon for $2,000 and $1,790 respectively admitted.