Re Clarke, Russell William John; Ex Parte Thyssen Haniel Logistics (Australia) Pty Ltd v Vince, Peter Robert

[1996] FCA 113

IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION                 )        VB 209 of 1995

BANKRUPTCY DISTRICT IN THE STATE  )

OF VICTORIA  )

RE:RUSSELL WILLIAM JOHN CLARKE

(Applicant)

EX PARTE: THYSSEN HANIEL LOGISTICS (AUSTRALIA) PTY LTD

(Petitioning Creditor)

AND:     PETER ROBERT VINCE

(Respondent)

CORAM:    Ryan J

DATE:     14 February 1996

PLACE:    Melbourne

REASONS FOR JUDGMENT

RYAN J:   This is an application for annulment of a sequestration order made on 9 February 1995.  The application is made on two grounds.  The first is that the sequestration order should not have been made because the debtor had never personally been indebted to the petitioning creditor.  The second ground is that the debtor was solvent at the time of the making of the sequestration order.

I do not regard it as appropriate for the Court at this remove of time to reopen the question of whether the debt on which the sequestration order was founded was in truth a debt owed by the debtor or by a company, Advanced Propane Supplies Pty Ltd, with which the debtor was associated or by which he was employed.  Without indicating exhaustively my reasons for that exercise of
discretion, I can indicate that the present state of the evidence does not enable me to come to a concluded view as to whether or not the contractual relationship was between the petitioning creditor and the company, or between the petitioning creditor and the debtor personally.

That being so, as revealed by the trustee's report, the petitioning creditor was one of three unsecured creditors amounting between them to a total value of $42,215.  Although the debtor claims to have assets of $155,050, the principal of those seems at all relevant times to have been a half interest in the matrimonial home and property at Ballarto Road, Cardinia, over which the National Australia Bank Ltd holds a mortgage securing a debt of $620,000.

No attempt has been made, before or since the making of the sequestration order, to realize that asset. Moreover, the debtor has an income over the past 12 months of only $5876 and he estimates his income over the forthcoming year at a similar amount.  His lack of realizable assets or adequate income to discharge his liabilities is demonstrated by the answer given to his own Counsel today, which was to the effect that if his bankruptcy were annulled he would be able to pay by instalments the Trustee's costs of the administration in bankruptcy which has been quantified as at 31 January 1996, as $8948.70.

For these reasons, I am not satisfied that the sequestration order ought not to have been made, and accordingly the application must be refused with costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan.

Associate:

Date:

Counsel for the Applicant         :   Mr S.E. Marantelli

Solicitors for the Applicant   :   Darrer Muir Fleiter

Counsel for the Petitioning    :   Mr F.J. Holzer

Creditor

Solicitors for the Petitioning :   Messrs Collins & Stephens

Creditor

Counsel for the Respondent     :   Mr M. Galvin

Solicitors for the Respondent  :   J.M. Smith & Emmerton

Date of Hearing                   :   14 February 1996

Date of Judgment              :   14 February 1996