Evans v Heather Thiedeke Group Pty Ltd

Re: JOHN DAVID EVANS
And: THE HEATHER THIEDEKE GROUP PTY LTD
No. G 56 of 1990
FED No. 551
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Neaves(1) and Ryan(1) JJ.

CATCHWORDS

Bankruptcy - Sequestration order - Judgment debt - Judgment obtained after contested hearing in superior court - Whether satisfactory proof of petitioning creditor's debt - Whether circumstances such that before making sequestration order court required to go behind the judgment and examine for itself whether petitioning creditor's debt existed

Bankruptcy - Creditor's petition - Prescribed form - Statement of amount of debt and consideration for it - Affidavit verifying petition - Form of - Requirement that facts be set out which if verified and not disputed would suffice to establish debt of requisite amount

Bankruptcy - Sequestration order - Order staying proceedings - Effect

Bankruptcy Act 1966 (Cth), ss.47, 52

Bankruptcy Rules, rule 12, Sch.1 Form 5

HEARING

CANBERRA

#DATE 28:9:1990

Counsel for the respondent: Mr P.D. McMurdo

Solicitors for the respondent : Morris Fletcher and Cross

ORDER

The appeal be dismissed.

The respondent's costs of the appeal be taxed and paid in accordance with s.109 of the Bankruptcy Act 1966 (Cth) as if they were the costs of a petitioning creditor.

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

JUDGE1

This is an appeal by John David Evans ("the appellant") from a judgment of this Court constituted by a single judge (Spender J.) given on 4 May 1990. By that judgment, which was pronounced following the hearing of a contested creditor's petition presented on behalf of The Heather Thiedeke Group Pty Ltd ("the respondent") on 1 September 1989, a sequestration order was made against the estate of the appellant.

1. The petition alleged that the appellant was justly and truly indebted to the respondent in the sum of $57,409.70 "for architects fees and interest thereon". It further alleged that the appellant had committed an act of bankruptcy by reason of his failure on or before 28 August 1989 to comply with the requirements of a bankruptcy notice (numbered BN 443 of 1989) duly served on him on 6 April 1989 or to satisfy the Court that he had a counter-claim, set-off or cross demand equal to or exceeding the amount of $57,409.70, being a counter-claim, set-off or cross demand that he could not have set up in the action or proceeding in which the judgment or order on which the bankruptcy notice was founded was obtained. Although the time fixed for compliance with the bankruptcy notice was a period of 14 days after the service of the notice, that time was subsequently extended up to and including 28 August 1989.

2. The judgment on which the bankruptcy notice was founded was a judgment of the Supreme Court of Queensland constituted by a single judge (G.N. Williams J.) given on 24 December 1987. That judgment, which clearly was a final judgment within the meaning of…