Re Clyne, Peter Leopold v Ex parte Deputy Commissioner of Taxation [1983] FCA 258

Re Clyne, Peter Leopold v Ex parte Deputy Commissioner of Taxation [1983] FCA 258

Where special circumstances exist and it is in the interests of the general body of creditors (such as the effect of relation back), the court retains power to make a sequestration order on a creditor's petition notwithstanding that the debtor is already bankrupt by virtue of his own petition. Such order can be antedated to take effect just prior to the statutory bankruptcy, to ensure proper administration and protect creditors' rights.

Parties
Debtor: Peter Leopold Clyne; Petitioning Creditor: Deputy Commissioner of Taxation; Trustee: William Edward Andrew
Jurisdiction
Australia
Judgment Date
07 October 1983
Procedural Posture
Bankruptcy / Hearing of Creditor's Petition
Outcome
sequestration order granted
Legal Topics
Sequestration Order, Relation Back, Debtor's Petition Versus Creditor's Petition, Effect of Bankruptcy on Creditor's Rights
Bankruptcy Sequestration Order Relation Back Debtor's Petition Versus Creditor's Petition Effect of Bankruptcy on Creditor's Rights

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Parties

Peter Leopold Clyne

Debtor

Deputy Commissioner of Taxation

Petitioning Creditor

William Edward Andrew

Trustee

Procedural Posture

Bankruptcy / Hearing of Creditor's Petition

Legal Issues

  1. 1 Whether the court has the power to make a sequestration order on a creditor's petition when the debtor is already bankrupt upon presentation of his own petition under s.55 of the Bankruptcy Act 1966
  2. 2 Effect of a previous bankruptcy on the debts owed by the bankrupt and on subsequent petitions by creditors
  3. 3 Circumstances under which it is in the interests of creditors to make a sequestration order notwithstanding an earlier bankruptcy

Ratio Decidendi

Where special circumstances exist and it is in the interests of the general body of creditors (such as the effect of relation back), the court retains power to make a sequestration order on a creditor's petition notwithstanding that the debtor is already bankrupt by virtue of his own petition. Such order can be antedated to take effect just prior to the statutory bankruptcy, to ensure proper administration and protect creditors' rights.

Court Disposition

sequestration order granted

Orders

  • A sequestration order is made against the estate of the debtor, taking effect on 6 September 1983 prior to the presentation of the debtor's own petition.
  • William Edward Andrew is declared trustee of the estate of the debtor.