St George Bank Ltd v Helfenbaum

FEDERAL COURT OF AUSTRALIA

St George Bank Ltd v Helfenbaum [1999] FCA 1337

BANKRUPTCY – Creditor’s petition – Grounds for refusal of sequestration order – Sufficient cause – Whether set‑off or cross claim sufficient cause – Whether real claim likely to succeed – Whether debtor able to pay debts – Meaning of “able to pay debts” – Whether “able” means “willing and able”.

Bankruptcy Act 1966 s 52(2)

Ling v Enrobook Pty Ltd (1997) 74 FCR 19 applied
Cain v Whyte (1933) 48 CLR 639 applied
Re Player (1962) 19 ABC 277 applied
Re Schmidt; Ex parte Anglewood Pty Ltd (1968) 13 FLR 111 applied
Commonwealth Bank v McDonald [1999] FCA 984 applied
Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 applied
Re Douglas Griggs Engineering Ltd [1963] 1 Ch 19 cited
Vogwell v Vogwell (1939) 11 ABC 83 cited
Bank of Australasia v Hall (1907) 4 CLR 1514 considered
Re Jones; Ex parte Clutterbuck Bros (Adelaide) Ltd (1930) 2 ABC 89 applied
Re Noye; Ex parte Deputy Commissioner of Taxation (1958) 18 ABC 77 applied
Sandell v Porter (1966) 115 CLR 666 applied
Re Eather; Ex parte Polada (unreported, 30 May 1996, Cooper J) cited
Re McVey; Ex parte Carswell & Co (unreported 22 May 1996, Cooper J) cited
International Alpaca Management Pty Ltd v Ensor [1999] FCA 72 cited
Re Sarina; Ex parte Wollondilly Shire Council (1980) 32 ALR 596 applied
Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 applied

ST GEORGE BANK LIMITED v JEFFREY LEON HELFENBAUM

VG 7911 OF 1998

SUNDBERG J
24 SEPTEMBER 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 7911 OF 1998

BETWEEN:	ST GEORGE BANK LIMITED (ACN 005 513 070) Applicant
AND:	JEFFREY LEON HELFENBAUM Respondent

JUDGE:	SUNDBERG J
DATE OF ORDER:	24 SEPTEMBER 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the application.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 7911 OF 1998

BETWEEN:	ST GEORGE BANK LIMITED (ACN 005 513 070) Applicant
AND:	JEFFREY LEON HELFENBAUM Respondent

JUDGE:	SUNDBERG J
DATE:	24 SEPTEMBER 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND

1. On 17 February 1998 the applicant’s predecessor, Advance Bank of Australia, obtained judgment against the respondent in the Magistrates’ Court at Melbourne for $21,117.20 for money owing under a loan contract. It is not necessary to distinguish between the applicant and its predecessor, and I will refer to each of them as “the Bank”. The respondent was granted a three months stay of the judgment. The stay expired on or about 17 May 1998. On 13 July 1998 a bankruptcy notice was served on the respondent. The notice was based on his failure to pay the amount of the judgment. On 30 July the respondent applied for a further stay of the judgment, which was refused. On 31 July he…