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Re Gollan; ex parte Gollan

Re Gollan; ex parte Gollan

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Re: DARRYL GOLLAN
Ex parte: DARRYL GOLLAN
No. Q B2323 of 1992
FED No. 1044
Number of pages - 8
Bankruptcy
(1992) 113 ALR 475
(1992) 40 FCR 38

COURT

IN THE FEDERAL COURT OF AUSTRALIA

BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND
GENERAL DIVISION
Spender J.(1)

CATCHWORDS

Bankruptcy - creditor's petition - judgment debt - sequestration order made by Registrar - debtor did not appear at hearing of petition - sequestration order not perfected - debtor solvent at time of making of sequestration order - judgment debt and all unsecured creditors paid - material evidencing debtor's solvency not before Registrar - Court has power to rescind, vary or discharge sequestration order made by Registrar - meaning of words 'ought not to have been made' - interests of petitioning creditor protected by costs order.

Bankruptcy Act 1966 ss. 14, 31A, 37, 52, 153B

Re Scott (1975) 6 ALR 558

Trojan v. Corporation of Hindmarsh (1987) 16 FCR 37

Re Frank; ex parte Piliszky (1987) 16 FCR 396

Sarina v. Council of the Shire of Wollondilly (1980) 48 FLR 372

Re Deriu (1970) 16 FLR 420

Re Griffiths; Ex parte Huntley (1892) 3 BC (N.S.W.) 6

Re Raymond; ex parte Raymond (unreported judgment of Spender J. of 30 June 1992)

HEARING

BRISBANE, 9 December 1992

#DATE 9:12:1992

Counsel for the applicant Mr L.A. Stephens
instructed by: Robinson Hoskin

Counsel for the petitioning Mr M.J. Drysdale
creditors instructed by: Justin F. O'Sullivan and Edgar

ORDER

THE COURT ORDERS THAT:

1. The sequestration order made against the estate of

Darryl Gollan by District Registrar Ramsey on 11 November 1992 be set aside and in lieu thereof the petition be dismissed.

2. The applicant pay the costs of the petitioning creditor

of and incidental to the petition, including all reserved costs, to be taxed if not agreed.

3. The applicant pay the costs of the petitioning

creditor, and of the Official Trustee, to be taxed if not agreed.

4. The applicant pay the reasonable costs of the

administration undertaken by the Official Trustee of Mr Gollan's estate, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

JUDGE1

SPENDER J. This is an application made to the Court on behalf of Darryl Gollan, to review or reconsider the sequestration order against the estate of Darryl Gollan made by District Registrar Ramsey on 11 November 1992, on the petition of Peter White and Patricia White, and seeking an order dismissing that petition. Alternatively, the application seeks an order for the annulment of the sequestration order on the ground that the sequestration order ought not to have been made. The application also seeks an order dispensing with service of the application on each creditor of the applicant and abridging time for the hearing of the application. In the course of submissions, counsel also sought to dispense with service of the application on the trustee.

The facts in this matter are somewhat unusual. From the…

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.

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Details

Case: [1992] FCA 1044
Decision Date: 09 DECEMBER 1992

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Re Gollan; ex parte Gollan involved a challenge to a sequestration order made by a District Registrar against Darryl Gollan. The petitioner, a creditor, had filed a petition for bankruptcy on the basis of a judgment debt. Gollan did not appear at the hearing, leading to the Registrar making a sequestration order. However, this order was not perfected as Gollan was solvent at the time and had since paid the judgment debt and all unsecured creditors. The material evidencing Gollan's solvency was not before the Registrar at the time the order was made.

The legal issues before the court were whether the sequestration order ought not to have been made and what consequences, if any, flowed from this. The court examined the meaning of the phrase 'ought not to have been made' in the context of the statutory provisions and case law. It also considered the need to protect the interests of the petitioning creditor.

The court found that the sequestration order should not have been made as it was not supported by the evidence available to the Registrar. The court had the power to rescind, vary or discharge the order under the relevant statutory provisions. The court ordered that the sequestration order be set aside and the petition dismissed. To ensure the petitioning creditor was not prejudiced by the error, the court ordered Gollan to pay the costs of the petitioning creditor, the Official Trustee, and the costs of the administration of Gollan's estate. The specific amount of these costs was to be taxed if not agreed upon by the parties.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The sequestration order made against the estate of

Darryl Gollan by District Registrar Ramsey on 11 November 1992 be set aside and in lieu thereof the petition be dismissed.

2. The applicant pay the costs of the petitioning creditor

of and incidental to the petition, including all reserved costs, to be taxed if not agreed.

3. The applicant pay the costs of the petitioning

creditor, and of the Official Trustee, to be taxed if not agreed.

4. The applicant pay the reasonable costs of the

administration undertaken by the Official Trustee of Mr Gollan's estate, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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