Boscolo, Sylvia v Botany Council [1996] FCA 897

Boscolo, Sylvia v Botany Council [1996] FCA 897

The evidence did not substantiate that the Family Court order, at the relevant period in January and February 1995, had in a business sense prevented the appellant from paying the debt. No 'equity' arose to invalidate the bankruptcy notice, and the act of bankruptcy was proved. The appeal was dismissed.

Parties
Appellant: Sylvia Boscolo; Respondent: Botany Council; Trustee: Official Trustee in Bankruptcy
Jurisdiction
Australia
Judgment Date
16 October 1996
Procedural Posture
Appeal From Judgment of a Single Justice / Judgment on Appeal
Outcome
Appeal dismissed
Legal Topics
Bankruptcy Notice, Stay of Execution, Injunctive Order, Disposition and Encumbrance of Assets, Act of Bankruptcy, Sequestration Order
Bankruptcy Bankruptcy Notice Stay of Execution Injunctive Order Disposition and Encumbrance of Assets Act of Bankruptcy Sequestration Order

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Parties

Sylvia Boscolo

Appellant

Botany Council

Respondent

Official Trustee in Bankruptcy

Trustee

Procedural Posture

Appeal From Judgment of a Single Justice / Judgment on Appeal

Legal Issues

  1. 1 Whether existence of an order restraining disposition and encumbrance of debtor's assets at the relevant time invalidates a bankruptcy notice by raising an 'equity'
  2. 2 Whether the judgment underlying the bankruptcy notice was one execution of which had been stayed under Bankruptcy Act 1966 s.40(1)(g)

Ratio Decidendi

The evidence did not substantiate that the Family Court order, at the relevant period in January and February 1995, had in a business sense prevented the appellant from paying the debt. No 'equity' arose to invalidate the bankruptcy notice, and the act of bankruptcy was proved. The appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • The appeal be dismissed
  • The respondent's costs of the appeal be paid by the appellant