This is an application made on behalf of one Edward
McCormack to have annulled a bankruptcy achieved by filing a
debtor's petition on 3 October 1989. The reason for the
| McCormack which says, in effect, that at the time when he became | application for annulment appears from an affidavit of M r |
bankrupt he had an accident and discussed it with his
solicitors, and I quote: |
"My solicitor told me that an alternative open to me was to present my own petition in bankruptcy if I did not have any reasonable expectation of being able to pay the amount of the third parties
Thd debtor goes on to say that he did not think he had any defence at that time. He presented his own petition because of the claim, which was for $22,000-odd. Then he goes on to say that he is actively defending the claim against him. He does not suggest that the opinion he has of his prospects of success is any different. M r Logan, who has appeared for him today, has been good enough to obtain the pleadings for me which have been tendered and marked Exhibit 1.
The defence is, I suppose, unhelpful, because it does not even admit that any collision occurred; but ignoring that, it seems that what happened is that the bankrupt's car ran into the back of another vehicle and damaged it severely, and he was subsequently fined. In those circumstances, his prospects of succeeding completely in the case would seem to be very slim indeed.
Mr Logan points out that he may succeed in having liability reduced, on the ground of contributory negligence.
| the defence other than a bald assertion. There is no suggestion | There is no specific allegation of contributory negligence in |
| that there was anything in particular that the vehicle in front did, which caused the collision. The exercise of defending the case seems to me to be a waste of time and money, on the face of it, including the court's time. It is my opinion that nothing is likely to be achieved, on the facts as placed before me, other than for the lawyers; that is, money is going to be wasted, which is a pity. |
| The argument which Mr Logan (who was helpful, as usual) put forward was that the petition ought not to have been presented, because at the time, on the information available, the debtor was solvent. It seems to me that there is something in that, although, as Mr Logan admits, the Court still has a discretion. What I have decided to do is to make an annulment subject to a condition, and the condition is that the terns of' |
| my reasons just given must be explained personally by the solicitors acting for M r McCormack, who are Messrs Primrose, Couper, Cronin and Rudkin. They must be explained personally to |
| Mr McCormack, and he must be given a copy of my reasons to |
| consider them. |
[Mr Logan gave an undertaking that that would be