Sherrin Rentals Pty Ltd, in the matter of Herbert v Herbert [2023] FCA 1323

Sherrin Rentals Pty Ltd, in the matter of Herbert v Herbert [2023] FCA 1323

The applicant proved that the judgment debt remained owing, that service requirements and procedural conditions were met, and that Mr Herbert failed to provide sufficient evidence of solvency. The facility agreement relied on by Mr Herbert was found to lack practical substance due to lack of supporting evidence that funds were available. The court was therefore not satisfied that Mr Herbert was solvent and affirmed the sequestration order. No grounds were established to go behind the judgment or to grant a stay.

Parties
Applicant: Sherrin Rentals Pty Ltd; Respondent: Rodney Herbert
Jurisdiction
Australia
Judgment Date
25 July 2023
Procedural Posture
Bankruptcy Petition Review / Judicial Review of Sequestration Order
Outcome
Application for review of sequestration order dismissed; sequestration order affirmed; costs ordered against respondent.
Legal Topics
Creditor's Petition, Sequestration Order, Solvency Test, De Novo Review, Service of Petition, Judgment Debt, Stay of Sequestration Order
Insolvency Bankruptcy Creditor's Petition Sequestration Order Solvency Test De Novo Review Service of Petition Judgment Debt +1 more

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Parties

Sherrin Rentals Pty Ltd

Applicant

Rodney Herbert

Respondent

Procedural Posture

Bankruptcy Petition Review / Judicial Review of Sequestration Order

Legal Issues

  1. 1 Whether the sequestration order made by the Registrar should be reviewed and set aside
  2. 2 Whether the applicant was solvent at the time of hearing
  3. 3 Whether the supporting judgment debt still exists and is properly established

Ratio Decidendi

The applicant proved that the judgment debt remained owing, that service requirements and procedural conditions were met, and that Mr Herbert failed to provide sufficient evidence of solvency. The facility agreement relied on by Mr Herbert was found to lack practical substance due to lack of supporting evidence that funds were available. The court was therefore not satisfied that Mr Herbert was solvent and affirmed the sequestration order. No grounds were established to go behind the judgment or to grant a stay.

Court Disposition

Application for review of sequestration order dismissed; sequestration order affirmed; costs ordered against respondent.

Orders

  • The application for the review of the sequestration order made by the Registrar on 31 May 2023 be dismissed.
  • The sequestration order made against the estate of Rodney Herbert by the Registrar on 31 May 2023 is affirmed.