Re Exell, Judith Ex parte Martin, Susan [1995] FCA 1079

Re Exell, Judith Ex parte Martin, Susan [1995] FCA 1079

Rule 68.02 of the Supreme Court Rules (Vic) does not impose a stay of execution for the purposes of s 40(1)(g) and s 41(3) of the Bankruptcy Act; execution of the judgment is not stayed as long as other methods of enforcement remain available, thus the bankruptcy notice is not invalid due to its issuance more than six years after the judgment took effect.

Jurisdiction
Australia
Judgment Date
20 December 1995
Procedural Posture
Bankruptcy Proceeding / Hearing of Creditor's Petition; Determination of Preliminary Issue
Outcome
preliminary issue determined in favour of judgment creditor; bankruptcy notice not invalid
Legal Topics
['stay of Execution' 'bankruptcy Notice Validity' 'enforcement of Judgment']
['bankruptcy' 'civil Procedure'] ['stay of Execution' 'bankruptcy Notice Validity' 'enforcement of Judgment']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Bankruptcy Proceeding / Hearing of Creditor's Petition; Determination of Preliminary Issue

Legal Issues

  1. 1 ['Whether execution of the judgment has been stayed for the purposes of s 40(1)(g) and s 41(3) of the Bankruptcy Act' 'Whether the bankruptcy notice is invalid because it was issued more than six years after the judgment took effect']

Ratio Decidendi

Rule 68.02 of the Supreme Court Rules (Vic) does not impose a stay of execution for the purposes of s 40(1)(g) and s 41(3) of the Bankruptcy Act; execution of the judgment is not stayed as long as other methods of enforcement remain available, thus the bankruptcy notice is not invalid due to its issuance more than six years after the judgment took effect.

Court Disposition

preliminary issue determined in favour of judgment creditor; bankruptcy notice not invalid

Orders

  • ['Bankruptcy notice not invalid by reason that it was issued after six years had elapsed since the judgment took effect.']