Re Devries, J. & Anor

[1992] FCA 424

Re: JAN DEVRIES and JAN DEVRIES
Ex Parte: WAYNE RICHARD FOALE and JILL LESLEY FOALE
No. Q P2024 of 1991
FED No. 424
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND
GENERAL DIVISION
O'Loughlin J.(1)

CATCHWORDS

Bankruptcy - judgment debt challenged by debtors - consideration of relevant facts - consideration of circumstances when this Court will go behind a judgment.

HEARING

BRISBANE

#DATE 3:6:1992

The Debtors appeared in person.

Counsel for the Petitioning Creditor: Mr Ryan

Solicitors for the Petitioning Creditor: Messrs Lyons

ORDER

THE COURT ORDERS THAT:

1. A sequestration order be made against the estate of Jan Devries

(Snr).

2. A sequestration order be made against the estate of Jan Devries

(Jnr).

3. The costs of the petitioning creditors including those costs reserved on 22 April 1992 be paid out of the estates of the abovenamed debtors.

Date of Commission of Act of Bankruptcy:

Jan Devries (Snr) 26th day of June 1991

Jan Devries (Jnr) 14th day of June 1991

Note: Settlement and entry of order is dealt with in Bankruptcy Rule 124.

JUDGE1

Within 4 days of their arrival in Australia in October 1987, the Devries family entered into a contract to purchase a house at Deception Bay, Queensland. The family consisted of Jan Devries, his wife Renske and their children Henny and Jan (Jnr). The petitioning creditors Wayne Richard Foale and his wife Jill Lesley Foale were the vendors of the house.

1. The source of the problem and the cause of this litigation was the dispute between the parties about the purchase price of the house. An additional issue was the claim by the Devries that the children were not co-purchasers of the house. The price stated in the contract was $85,000 and the petitioning creditors have maintained that the price was never varied. The Devries' claimed that $85,000 was the original price but that the petitioning creditors ultimately agreed to accept $80,000 when the Devries' said they would be financially unable to purchase the house at $85,000.

2. The petitioning creditors acknowledged that the Devries were having financial difficulties but their case was that they accommodated their purchasers by carrying $5,000 as vendors' finance for a period of 12 months.

3. The Devries had paid a deposit of $8,500 and at settlement they paid a further $70,000, being the amount borrowed by them by way of first mortgage. For reasons which have not been made clear they were permitted to settle on the purchase of the house without paying the shortfall of $1,500 (the difference between $78,500 and $80,000) and $285.12 the amount that was said to be due by them on an adjustment for rates and taxes.

4. The Devries made one payment of $500 by cheque dated 28 April 1988 but they have paid nothing since. Having regard to the manner in which their evidence unfolded, this admitted payment of $500 has cast the most severe doubts in my mind about the truthfulness of the claims advanced by Mr…