Parkes, Damien v ADC Properties Pty Ltd & Anor [1995] FCA 1004

Parkes, Damien v ADC Properties Pty Ltd & Anor [1995] FCA 1004

Where there is a substantial and genuine dispute as to the existence of the debt forming the basis of the petition, particularly when a judgment has been set aside and leave given to defend, a sequestration order should not be made until the dispute is resolved; the petition should be adjourned.

Jurisdiction
Australia
Judgment Date
01 December 1995
Procedural Posture
Bankruptcy Petition / Hearing of Creditor's Petition and Application for Sequestration Order
Outcome
Petition for sequestration adjourned; no sequestration order made; parties may restore the petition to the list upon reasonable notice; costs reserved.
Legal Topics
['sequestration Order' 'genuine Dispute on Debt' 'substituted Creditor' 'adjournment of Petition']
['bankruptcy'] ['sequestration Order' 'genuine Dispute on Debt' 'substituted Creditor' 'adjournment of Petition']

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Procedural Posture

Bankruptcy Petition / Hearing of Creditor's Petition and Application for Sequestration Order

Legal Issues

  1. 1 ['Whether a sequestration order should be made where a default judgment has been set aside and there is a real dispute as to the debt' 'Whether an applicant for substitution as petitioning creditor must prove the debt' 'Whether the evidence is sufficient to establish the debt under s 52 of the Bankruptcy Act 1966']

Ratio Decidendi

Where there is a substantial and genuine dispute as to the existence of the debt forming the basis of the petition, particularly when a judgment has been set aside and leave given to defend, a sequestration order should not be made until the dispute is resolved; the petition should be adjourned.

Court Disposition

Petition for sequestration adjourned; no sequestration order made; parties may restore the petition to the list upon reasonable notice; costs reserved.

Orders

  • ['The petition for sequestration be adjourned to a date to be fixed.' 'The parties to the proceedings by way of petition may apply to restore the petition to the list upon reasonable notice.' 'Costs reserved.']