Yates, Re F.E. Gilchrist, Ex Parte T. [1986] FCA 245

Yates, Re F.E. Gilchrist, Ex Parte T. [1986] FCA 245

The evidence overwhelmingly demonstrated that Mr Yates was knowingly concerned in making representations that were false and misleading; there is no sufficient defence on the merits to set aside the default judgment, and the evidence does not establish that the value of unsold machines would reduce the debt below the threshold for bankruptcy. The application to set aside judgment was therefore dismissed and the bankruptcy petition was adjourned.

Parties
Applicant: Terrence Gilchrist; First Respondent: A T S Amusements Pty Limited formerly Australian Table Soccer Company Limited; Second Respondent / Debtor: Frank Yates (also known as Franklyn Ernest Yates); Third Respondent: Brian Hunt; Fourth Respondent: Jeff Waller
Jurisdiction
Australia
Judgment Date
20 May 1986
Procedural Posture
Application to Set Aside Default Judgment; Bankruptcy Petition / Extempore Judgment Following Hearing of Both Applications
Outcome
Application to set aside default judgment dismissed; further hearing of bankruptcy petition adjourned.
Legal Topics
Setting Aside Default Judgment, Misleading and Deceptive Conduct, Bankruptcy Petition, Going Behind Judgment, Assessment of Damages
Trade Practices Bankruptcy Setting Aside Default Judgment Misleading and Deceptive Conduct Bankruptcy Petition Going Behind Judgment Assessment of Damages

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Parties

Terrence Gilchrist

Applicant

A T S Amusements Pty Limited formerly Australian Table Soccer Company Limited

First Respondent

Frank Yates (also known as Franklyn Ernest Yates)

Second Respondent / Debtor

Brian Hunt

Third Respondent

Jeff Waller

Fourth Respondent

Procedural Posture

Application to Set Aside Default Judgment; Bankruptcy Petition / Extempore Judgment Following Hearing of Both Applications

Legal Issues

  1. 1 Whether applicant has a defence on the merits to set aside default judgment
  2. 2 Whether there is a genuine debt to support bankruptcy petition

Ratio Decidendi

The evidence overwhelmingly demonstrated that Mr Yates was knowingly concerned in making representations that were false and misleading; there is no sufficient defence on the merits to set aside the default judgment, and the evidence does not establish that the value of unsold machines would reduce the debt below the threshold for bankruptcy. The application to set aside judgment was therefore dismissed and the bankruptcy petition was adjourned.

Court Disposition

Application to set aside default judgment dismissed; further hearing of bankruptcy petition adjourned.

Orders

  • The motion to set aside the judgment in matter No.G.72 of 1981 be dismissed.
  • Franklyn Ernest Yates to pay Terrence Gilchrist his costs of the motion to set aside judgment.