Driessen v Parkinson

[2000] FCA 871

FEDERAL COURT OF AUSTRALIA

Driessen v Parkinson [2000] FCA 871

BANKRUPTCY – contested creditor’s petition – whether court should exercise discretion to go behind judgment to determine whether there was, in truth and reality, a debt due – consideration of the relevance of agreement founding debt having been admitted into evidence despite not having been stamped.

Bankruptcy Act 1966
Stamp Act 1894 – s 4A

Wolff v Donovan (1991) 29 FCR 480 cited
Udovenko v Mitchell (1997) 160 ALR 161 cited

PETER ANTONIUS DRIESSEN & MARIETTE BERNADETTE DRIESSEN v DAVID PARKINSON
Q 7123 OF 1999

SPENDER J
14 JUNE 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 7123 OF 1999

BETWEEN:

PETER ANTONIUS DRIESSEN
First Applicant

MARIETTE BERNADETTE DRIESSEN
Second Applicant

AND:

DAVID PARKINSON
Respondent

JUDGE:

SPENDER J

DATE OF ORDER:

14 JUNE 2000

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.A sequestration order be made against the estate of David Parkinson.

2.Costs of and incidental to the creditor’s petition, including reserved costs, be taxed and paid in accordance with the Bankruptcy Act 1966.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 7123 OF 1999

BETWEEN:

PETER ANTONIUS DRIESSEN
First Applicant

MARIETTE BERNADETTE DRIESSEN
Second Applicant

AND:

DAVID PARKINSON
Respondent

JUDGE:	SPENDER J
DATE:	14 JUNE 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is a contested creditor’s petition.  The sole ground on which the petition is now opposed is that set out in the amended notice of intention to oppose the petition, which was filed on 3 May 2000, as follows:

   “This Honourable Court should exercise its discretion to dismiss the Creditor’s Petition because, notwithstanding that the Applicants entered a judgment in the Magistrates Court against the Respondent on 1 February, 1994 in proceedings 21173 of 1993, behind that judgment there was, in truth and reality, no debt due to the Applicants by the Respondent.”

2. It is accepted by the parties that the history of the matter is as follows:  on 1 February 1994, in Magistrates Court Action 21173 of 1993, the applicants (as plaintiffs) obtained against the respondent and one Fiona Margaret Parkinson (as second defendants) a judgment comprised of $25,000 for claim, $733.90 for interest, and $878.25 for costs, making a total of $26,612.15.

3. The claim against the second defendants in the Magistrate Court, who were Mr and Mrs Parkinson, was for moneys owing by them under a guarantee.  The judgment was made in default of entry of appearance and defence.  An application was made to the Magistrates Court to set aside that judgment.  On 31 March 1995, the Magistrates Court dismissed the application, and ordered the costs of it against Mr and Mrs Parkinson.  By notice dated 21 April 1995, Mr and Mrs Parkinson and the other defendant in the action appealed against the decision dismissing the application to set aside the judgment.  In the event, they did not proceed with the appeal, and…