Re Hicks, T. v Ex parte Schweikert, G

Re: TERRI HICKS
Ex Parte: GREGORY MALCOLM SCHWEIKERT
No. QLD PET 659 of 1985
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE SOUTHERN
DISTRICT OF THE STATE OF QUEENSLAND
Pincus J.

CATCHWORDS

Bankruptcy - creditor not named in judgment - judgment under Residential Tenancies Act 1975 (Q) - identification of judgment creditor by evidency aliunde.

Bankruptcy Act, s.40(3)(d)

Residential Tenancies Act 1975 (Q), ss.23, 27

Magistrates Courts Rules 1960 (Q), r.187(2), Form M.C. 54

HEARING

BRISBANE
#DATE 18:9:1985

ORDER

1. I find the act of bankruptcy alleged in the paragraph numbered four of the petition.

2. I am satisfied of proof of the other matters of which the Act requires proof.

3. I note that no registered trustee has consented to act as trustee of the estate of the debtor.

4. I make a sequestration order against the estate of the debtor, Terri Hicks, and order that the petitioning creditor's costs of and incidental to this petition be taxed and paid in accordance with the Bankruptcy Act 1966.

NOTE: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

JUDGE1

This is an uncontested hearing of a bankruptcy petition presented by Gregory Malcolm Schweikert. The certified copy of the final judgment by which the petitioner claims to have become a judgment creditor of Terri Hicks, the person alleged to be the judgment debtor appears to show that judgment was entered in favour of Catherine Patricia Barker, not Gregory Malcolm Schweikert. That judgment was entered "for the landlord" against Terri Hicks as defendant, in an action where the sole plaintiff was Catherine Patricia Barker.

1. Judgment was entered in accordance with r.187(2) of the Magistrates Courts Rules, 1960 (Q), for the sum of $1,400 in respect of the claim, and $156.50 for costs. The form required to be used to enter judgment under that rule is Form M.C.54 which, as it appears in the Magistrates Court Rules, is as follows:-
   
   

"JUDGMENT UNDER PART XVIII

(Rule 187 (2))

(General Title - Form 1)

Whereas on the day of , 19 , it was adjudged by the Magistrates Court at that the plaintiff (defendant or as the case may be) do recover against the amount of ($ for ) (and $ for costs) (or otherwise as adjudged or ordered).

And it was ordered that the defendant do pay the same (specifying instalments or as the case may be).

Judgment is hereby entered for (the amount of $ for ) (and) (the amount of $ for costs).

Dated at , this day of , 19 .

Registrar"

1. The form actually used was one printed by the Government Printer, Brisbane, which purportedly reproduces the form as set out in the rules, and merely requires the appropriate spaces to be filled in. However, the form as printed leaves no space between the word "that" in the second line of the body of the form, and the words "the plaintiff". This trivial error seems to have…