Emerson v Wreckair Pty Ltd

Re: JOSEPH FRANCIS EMERSON and WILMA LUCY EMERSON
And: WRECKAIR PTY. LIMITED
No. G68 of 1991
FED No. 16
Bankruptcy
(1992) 33 FCR 581

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Morling(1), Neaves(1) and Spender(1) JJ.

CATCHWORDS

Bankruptcy - Bankruptcy notice - Validity - Notice founded on judgment entered after contested hearing in which debtors legally represented - Appeal from judgment pending - No stay of judgment - Allegation that judgment entered for too large a sum - Amount claimed in the bankruptcy notice in accordance with judgment - No circumstances justifying court in bankruptcy "going behind" judgment - Circumstance that judgment subsequently varied on appeal not of significance.

Bankruptcy - Bankruptcy notice - Application to extend time for compliance - Whether Registrar in Bankruptcy had power to specify different dates for compliance in respect of identifiable components of the amount of the judgment debt on which notice founded.

Bankruptcy - Bankruptcy notice - Appeal pending against judgment on which notice founded - No case made out to extend time for compliance pending determination of appeal.

HEARING

BRISBANE

#DATE 31:1:1992

Counsel for the appellants: Mr P.E. Hack

Solicitors for the appellants: Lees Marshall and Warwick

Counsel for the respondent: Mr K. Varley

Solicitor for the respondent: Barker Gosling

ORDER

The appeal be dismissed.

The appellants pay the respondent's costs of and incidental to the appeal.

The time for compliance with the bankruptcy notice issued on 14 December 1990 be extended until 21 days after the date of this order.

In the event that a sequestration order is made against the appellants founded upon the bankruptcy notice issued on 14 December 1990, any part of the costs of the appeal which then remains unpaid is to be treated as if that part of the costs were petitioning creditor's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal by Joseph Francis Emerson and Wilma Lucy Emerson ("the appellants") from part of a judgment given by a single judge of the Court (Pincus J.) on 8 May 1991. The subject matter of the judgment is a bankruptcy notice addressed to the appellants that was issued by a Deputy Registrar in Bankruptcy on 14 December 1990 upon an application in that behalf by Wreckair Pty Limited ("the respondent").

1. The bankruptcy notice was founded upon a final judgment obtained by the respondent against the appellants in the District Court of Queensland (Kimmins D.C.J.) on 27 November 1990 after a contested hearing in which the appellants and the respondent were legally represented. The judgment, which was in the sum of $29,081.65 plus interest of $4,560.64 and costs, arose out of an agreement dated 29 August 1988 whereby, in consideration of the respondent supplying goods and services on credit to a company called Joe Emerson Pty Limited ("the company"), the appellants jointly and severally guaranteed to the respondent the payment by the company of the cost of those…