Shlakht v Nissan Finance Corporation Limited

[1991] FCA 943

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY	)	No VP 921 of 1990
)
GENERAL DIVISION	)

MARC SHLAKHT

(Judgment Debtor )

EX PARTE:  NISSAN FINAN CE

CORPORATION LIMITED

( Judgment Creditor )

Coram:	Ryan J 26 June 1991
Place:	Melbourne

EX TEMPORE REASONS FOR JUDGMENT

RYAN J.:  In this matter, I am satisfied, and , indeed, there

is no dispute, that the matters stated in the petition have

been proved, as has service of the petition and the fact that the debt on which the petitioning creditor relies is still

owing . Accordingly, the petitioning creditor has a prima

f acie right to a sequestration order unless the court is

satisfied by the debtor in terms of s.52 (2) of the Act t hat

he is able to pay his debts.

The evidence discloses that the debtor is possessed of

significant assets, the most substantial of which he owns

j ointly with his wife and his nephew, respectively . The

debtor conducts a business in partnership with that nephew a s

a stall holder at the Caribbean Market s . I am invited by

counsel for the debtor to infer that a second mortgage on the

jointly owned matrimonial home could readily be obtained to

pay, in particular, the petitioning creditor's debt.

However, the Court is bound in considering ability to pay

debts in accordance with s.52 (2) to take account not only of

the debt due to the petitioning creditor but of debts

disclosed as due to other creditors.

I do not regard this case as one coming within the principles of Re Sarina ex parte Council of the Shire of Wollondilly

(1980) 43 FLR. 163 in which the petition was dismissed because

the Court was satisfied that the debtor was plainly solvent

and contumaciously refused to pay the petitioning creditor's debt. I also decline to draw the inference, which Counsel for the debtor suggested, that the debtor is presently able to pay all of his current debts by raising further money on the

security of the jointly-owned matrimonial home.

In all the circumstances, I am not persuaded that the debtor

has discharged the onus of proving present ability to pay his

debts and, accordingly, there must be a sequestration order .

I shall stay all proceedings pursuant to the sequestration

order for 21 days from this day and order that the petitioning creditor's costs, including any reserved costs, be taxed and paid in accordance with the statute.

I certify that this and the

preceding page are a true copy

of the Reasons for J u dgmgnt o£

Hi5 Honour Mr Justice Ryan.

Associate: {.p,nCUldu. (/J8~

Date: