Eastern Pastoral Co Pty Ltd v McFarlane

FEDERAL COURT OF AUSTRALIA

Eastern Pastoral Co Pty Ltd v McFarlane [1999] FCA 172

BANKRUPTCY - sequestration – whether judgment debt due and payable – effect of instalment order - whether claim for damages by the debtor sufficient cause to dismiss petition

Bankruptcy Act 1966 (Cth) s 52(2)
Judgment Debt Recovery Act 1984 (Vic) ss 5(1), 9

Beauchamp, In re; Ex parte Beauchamp  [1904] 1 KB 572
Ling v Enrobook Pty Ltd (1997) 74 FCR 19
Schekeloff, Re; Ex parte Schekeloff v Hopkins Group Pty Ltd (1989) 22 FCR 407
Sgambellone, Re; Ex parte Jacques (1994) 53 FCR 275

EASTERN PASTORAL CO PTY LTD (TRADING AS AGRICULTURAL ASSESSMENTS) V MALCOLM JAMES MCFARLANE

NO. VG 7806 OF 1998

JUDGE:         FINKELSTEIN J
DATE:           18 FEBRUARY 1999
PLACE:         MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 7806 OF 1998

BETWEEN:	EASTERN PASTORAL CO PTY LTD (TRADING AS AGRICULTURAL ASSESSMENTS) (ACN 007 440 593) Applicant
AND:	MALCOLM JAMES MCFARLANE Respondent
JUDGE:	FINKELSTEIN J
DATE OF ORDER:	18 FEBRUARY 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.   The motion to review the decision of the Judicial Registrar be dismissed.

2.   The costs of the motion, including reserved costs, be part of the creditor’s costs in the petition.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 7806 OF 1998

BETWEEN:	EASTERN PASTORAL CO PTY LTD (TRADING AS AGRICULTURAL ASSESSMENTS) (ACN 007 440 593) Applicant
AND:	MALCOLM JAMES MCFARLANE Respondent

JUDGE:	FINKELSTEIN J
DATE:	18 FEBRUARY 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 14 December 1998, on the petition of Eastern Pastoral Co Pty Ltd (Eastern Pastoral), a Judicial Registrar of the Court ordered that the estate of Malcolm McFarlane be sequestrated. Pursuant to s 18AC of the Federal Court of Australia Act 1976 (Cth) Mr McFarlane applies to review that decision.

2. Eastern Pastoral obtained judgment for $6,814.32, together with interests and costs, against Mr McFarlane in the Magistrates’ Court at Melbourne on 13 January 1995. In March 1995 Mr McFarlane applied for and obtained an order that the judgment debt be paid by 65 monthly instalments of $150 each. That order was made under s 5(1) of the Judgment Debt Recovery Act 1984 (Vic).

3. Mr McFarlane paid the instalments due between April 1995 and October 1996. The total amount paid was $2,700. Thereafter no instalments were paid, save for one that I will mention shortly. In consequence of the failure to keep up the instalments, the unpaid balance of the judgment debt became due and payable (see s 9 of the Judgment Debt Recovery Act) as did interest fixed under s 2 of the Penalty Interest Rates Act 1983 (Vic): see

   
   

   s 100(7) of the Magistrates’ Court Act 1989 (Vic).

4. On 9 June 1998 Mr McFarlane was served with a bankruptcy notice which required him either to pay the balance of the judgment debt together with interest or to secure, or compound, the…