Re Calderon, Kevin Roy - [1977] FCA 26

REASONS FOR JUDGMENT

November

1 9 7 6 a

seques t ra t icv orc?er

<,.-as ~,tdc?

:[?sind:

t h c c s t a t e s

Kevin Roy Calderon and h i s wife Jure l?l?ine Cz:dcIcrl.

December

1 9 7 6 t h e y f i l e d

this

a p p l i c a t i o r d a t e d

Decclllber

1976,

whlch

a s amendsd

p u r s u a n t

t o

l e a v c q r a n t c d

M a r c : h

1 9 7 7

seeks

o r d e r r e s c i n d i n g t h e s e q u f s t r a t i c n o r d e r

L:ltcr:1;+t:-p21.y

an order under

154(1)

(a ) of

the Eankruptcy

A c t 1366 annc!iing

the

bankruptcy on the ground tha t

tile

c r e d i t o r s ' p e t i t j o n

was

lot

served

t h e a p p l i c a n t s a n d

t h e

s e q u c s t r a t i o n o r d e r t h e r c i x r .

o u g h t n o t

t o h a w b e e n

made.

The

a p p l i c a t i o n

v a c

opposca

t h e p e t i t i o n i n g c r e d i t o r s .

Sec t ion

154 (1)

( a ) , so Tar ,IS it is m a t e r i z l to till.:

ca.se,

p r o v l d c 5 t 5 a t

"I.rvrc the-:

Court

s a t j sfied

that. a

s;cquc:straL~on

Ordcr ouc,ht noc

to have becl. 1?-2,?? . .

the Court

may x.z!\+ dn ofclisr

-2-

may

appear

rom cvidcncc

subseouent ly

f ~ l e d ,

and

c e r t a l n l y would

not appear f rom

the

b a r e s t a t e p e n t

t h e

form.tl.

p e t i t i o n , w h i c h

alone

was

b e f o r e t h e

Court when

t h e o r d e r was made".

I n t h a t

case

t h e q u e s t i o n

was

whe the r an ad jud ica t ion ough t t o

be annul led. the "ba re s t a t emen…

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.

Continue reading Re Calderon, Kevin Roy

Details

AGLC: Re Calderon, Kevin Roy [1977] FCA 26
Case: [1977] FCA 26
Decision Date: 31 May 1977

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of Re Calderon, Kevin Roy, involved an application by the debtor and his wife to rescind a sequestration order or, alternatively, to annul their bankruptcy under Section 154(1)(a) of the Bankruptcy Act 1966. The applicants contended that the creditors' petition was not served on them, and the sequestration order should not have been made. The legal issues before the court were whether the sequestration order should not have been made and, if so, whether the order should be annulled. The court considered the evidence of service of the petition, the credibility of the debtor and his wife, and the surrounding circumstances of the case. Ultimately, the court found that the evidence did not establish that the petition was not served, and the application was dismissed. The applicants were ordered to pay the petitioning creditor's taxed costs, including reserved costs, of and incidental to the application.

The case hinged on the question of whether the sequestration order should not have been made, considering the evidence of service of the creditors' petition on the debtors. The court examined the affidavits and testimonies of the process-server, the debtor, and the debtor's wife, as well as other witnesses and documentary evidence. The court found that the evidence did not establish that the petition was not served on the debtors, and the sequestration order was validly made. Consequently, the application to rescind the sequestration order or to annul the bankruptcy was dismissed, and the applicants were ordered to pay the petitioning creditor's costs.

Orders