Pearl Printing Pty Ltd v Mackay, R - [1989] FCA 349

-

BANKRUPTCY - sequestration order.

BANKRUPTCY ACT 1966 -

PEARL RPINTING PTY. LTD. ( P e t i t l o n l n g Creditor)

RAY MACKEY ( D e b t o r )

9 MAY 1989

LOCKHART J .

SYDNEY

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

) )
NEW SOUTH WALES DISTRICT REGISTRY

) NO. P2147 of 1988
)

GENERAL DIVISION 1

BETWEEN: PEARL PRINTING PTY. LTD.

Petltroning Creditor

RAY MACKEY
Debtor

JUDGE MAKING ORDER: LOCKHART J .
DATE ORDER MADE: 9 MAY 1989
WHERE ORDER MADE: SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:
1. A sequestration order be made against the estate of the

debtor.

2. The costs of the petitioning creditor including any
reserved costs be paid out of the estate.

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

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
1
NEW SOUTH WALES DISTRICT REGISTRY

) NO. P2147 of 1988
1

GENERAL DIVISION )

BETWEEN: PEARL PRINTING PTY. LTD.

Petitioning Creditor

RAY MACKEY
Debtor

9 May 1989

REASONS FOR JUDGMENT

LOCKHART J.

This is a petition of Pearl Printing Pty. Limited to sequestrate the estate of Ray Mackey. I shall for convenience refer to them as the petitioning creditor and the debtor respectively.

The petition has been in the list on a number of

previous occasions. It appears that on at least one prior occasion an adjournment was permitted because the debtor offered to pay a portion of the debt which he owes the petitioning creditor. He has in fact paid two amounts to the petitioning creditor, totallrng some $2,000, since that time.

The petitioning creditor has proved the gormalities that are necessary for the making of sequestration order. The debtor opposes the making of that order on grounds set out in his notice of opposition of 18 November 1988, namely, that a portion of the debt claimed by the petitioning creditor is said to be owed, not by the debtor, but by a company, Columbia Offset Plates Pty. Limited. Some $1,674 is said to be owed by that company; however, the balance of the debt, which totals approximately $3,000, is admittedly owed by the debtor himself.

It is apparent from what the debtor has said that he had hoped for some last minute arrangement to be made with the petitioning creditor. I am informed by counsel for the petitioning creditor that that arrangement is not satisfactory and his client seeks to proceed today for a sequestration order. The debtor has given evidence ln support of his application to adjourn this petition for sufficient time to enable him to discharge at least a portion of his remaining indebtedness to the petitioning creditor.

The evidence reveals that the debtor has a business in the field of typesetting and related activities that is conducted by a firm of which he and his wife are the proprietors. It has equipment, machinery and other assets.

I have no…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Pearl Printing Pty Ltd v Mackay, R and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1989] FCA 349
Decision Date: 9 May 1989

CaseChat Overview and Summary

Pearl Printing Pty Ltd, a creditor, sought a sequestration order against Ray Mackey, the debtor, in the Federal Court of Australia. The primary dispute was over whether the debtor's estate should be sequestrated due to his inability to repay debts, despite some payments made towards the creditor. The debtor opposed the order, arguing that a portion of the debt was owed by a company, Columbia Offset Plates Pty Ltd, rather than by him personally. The court had to decide if the creditor had proven the necessary elements for a sequestration order and whether the debtor's opposition had merit.

The court considered the debtor's financial situation, including his business assets, personal property, outstanding debts, and the value of his business. It noted that the debtor had made some payments but still had substantial liabilities. The court also observed that the debtor had made piecemeal arrangements to pay creditors as they pressed for payment, which was not beneficial in the long term. The court concluded that it was in the best interests of the debtor and the public for a sequestration order to be made, despite the debtor's hopes for future prosperity.

The court found that the creditor had established the requisite elements for a sequestration order. It ordered that a sequestration order be made against the debtor's estate and that the costs of the petitioning creditor, including any reserved costs, be paid out of the estate. The court certified that the reasons for judgment were a true copy of the Honourable Mr Justice Lockhart's decision.

Orders