Re Clarke, Russell William John; Ex Parte Thyssen Haniel Logistics (Australia) Pty Ltd v Vince, Peter Robert [1996] FCA 113

Re Clarke, Russell William John; Ex Parte Thyssen Haniel Logistics (Australia) Pty Ltd v Vince, Peter Robert [1996] FCA 113

The evidence does not sufficiently establish that the debtor was not personally indebted, nor that the debtor was solvent at the time of the sequestration order, as his main asset was encumbered and his income insufficient; thus, the sequestration order should not be annulled.

Parties
Applicant: Russell William John Clarke; Petitioning Creditor: Thyssen Haniel Logistics (Australia) Pty Ltd; Respondent: Peter Robert Vince
Jurisdiction
Australia
Judgment Date
14 February 1996
Procedural Posture
Bankruptcy Annulment Application / Judgment on Application for Annulment of Sequestration Order
Outcome
application for annulment of sequestration order refused with costs
Legal Topics
Annulment of Sequestration Order, Personal Insolvency
Bankruptcy Annulment of Sequestration Order Personal Insolvency

Case Brief

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Parties

Russell William John Clarke

Applicant

Thyssen Haniel Logistics (Australia) Pty Ltd

Petitioning Creditor

Peter Robert Vince

Respondent

Procedural Posture

Bankruptcy Annulment Application / Judgment on Application for Annulment of Sequestration Order

Legal Issues

  1. 1 Whether the sequestration order should be annulled on the ground that the debtor was not personally indebted to the petitioning creditor
  2. 2 Whether the debtor was solvent at the time of the making of the sequestration order

Ratio Decidendi

The evidence does not sufficiently establish that the debtor was not personally indebted, nor that the debtor was solvent at the time of the sequestration order, as his main asset was encumbered and his income insufficient; thus, the sequestration order should not be annulled.

Court Disposition

application for annulment of sequestration order refused with costs

Orders

  • Application for annulment refused
  • Applicant to pay costs