Re Keane, John Aloysius Ex Parte Bobo Nominees Pty Ltd

[1995] FCA 1186

1186 75

JUDGMENT NO. *.~.s.*a*.aaam.ml

IN THE FEDERAL COURT OF AUSTRALIA )

)

BANKRUPTCY DISTRICT OF VICTORIA ) No VP 510 of 1995

RE :

Judgment Debtor

EX PARTE: BOB0 NOMINEES PTY LIMITED

Petitioner

14 August 1995

REASONS FOR JUDGMENT

LOCKHART J.:

I refused earlier this afternoon the debtor's second application to adjourn the petition. Having done so, counsel for the debtor and his instructor have decided to withdrawn from the proceeding, which they did. I made it clear that I did not regard that conduct as discourteous. That means the petitioner is in a position to proceed to have a sequestration order made, but I have adopted the course, in view of the events that have unfolded, of looking at the evidence that the debtor has filed in support of his opposition to the petition, in particular on the question of whether he is indebted to the petitioner.

That evidence consists of the debtor's own affidavit filed on 31 July, 1995, and an affidavit in response of M r Peter Szanto filed in Court on 2 August 1995. Taking the debtor's affidavit entirely at face value, I am not persuaded that the affidavit of the debtor would entitle him to a finding that he is not indebted to the petitioning creditor.

- 2 -

There is nothing in his affidavit to suggest that he was induced to enter the guarantee on which he was sued (which appears to be one of February 1992, though it is not entirely clear) by the conduct of the petitioner in general, or Mr Szanto in particular. Nor is there any suggestion that anything was misrepresented to him, or that there was a duty owed to him by the petitioner, Mr Szanto, or anyone else arising from the circumstances that surrounded the signing by him of the two guarantees. There is, in short, no defence that could have been established on M r Keane's own affidavit, even if I took it at its face value.

Accordingly, the Court is satisfied of the proof of the matters of which S. 52 of the Bankruvtcv Act 1966 requires proof. I make a sequestration order against the Estate of John Aloysius Keane. The petitioning creditor's costs of, and incidental to, the petition (including reserved costs if any) shall be taxed and paid according to the statute.

The Court notes that no consent from a particular trustee has been filed; and that the date of the act of bankruptcy on which the petition in this matter is founded is 31 March 1995.

I certify that this and the

preceding' one (1) page are a true copy of the reasons for judgment herein of the Honourable Justiceockhart.

Associate

Dated: 14