Westpac Banking Corp v McMahon

[1999] FCA 874

FEDERAL COURT OF AUSTRALIA

Westpac Banking Corp v McMahon [1999] FCA 874

IN THE MATTER OF PAUL JOSEPH McMAHON; WESTPAC BANKING CORPORATION v PAUL JOSEPH McMAHON

N 7060 OF 1999

KATZ J
SYDNEY
23 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7060 OF 1999

IN THE MATTER OF PAUL JOSEPH McMAHON;

BETWEEN:	WESTPAC BANKING CORPORATION Applicant
AND:	PAUL JOSEPH McMAHON Respondent
JUDGE:	KATZ J
DATE OF ORDER:	23 JUNE 1999
WHERE MADE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.The deed of arrangement entered into between the respondent and Mr Peter David Rogers on 25 November 1998 be terminated.

2.The estate of the respondent be sequestrated.

3.The applicant’s costs of the proceeding (including reserved costs, if any) be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7060 OF 1999

IN THE MATTER OF PAUL JOSEPH McMAHON;

BETWEEN:	WESTPAC BANKING CORPORATION Applicant
AND:	PAUL JOSEPH McMAHON Respondent

JUDGE:	KATZ J
DATE:	23 JUNE 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. There is before the Court an application by Westpac Banking Corporation (“the creditor”) against Mr Paul Joseph McMahon (“the debtor”). The application seeks relief under s 236 of the Bankruptcy Act 1966 (Cth) (“the Act”). Paragraph 236(1)(a) of the Act provides that the Court may, upon application by a creditor, if it is satisfied that the debtor has failed to carry out or comply with a provision of a deed of arrangement, make an order terminating that deed. The creditor has made application for such an order. It has also made application for further relief under s 236 of the Act, to which further relief I will refer later in these reasons for judgment.

2. On 25 November 1998, the debtor entered into a deed of arrangement under Pt X of the Act (“the deed”) with Mr Peter David Rogers (“the trustee”).

3. Clause 3.2 of the deed provided that the debtor should within seven days of being required to do so deliver by way of payment in the form of cleared funds amounts sufficient to enable the trustee to pay to the creditors whose proofs of debt had been submitted and accepted by the trustee the payment, after satisfying any payments in priority required to be made, or to which the trustee was entitled, in accordance with the terms of the Act.

4. The creditors referred to in cl 3.2 of the deed were subdivided in cl 1.1 thereof into classes distinguished by reference to their geographic location.

5. Clause 4 of the deed provided that the trustee should apply any assets or moneys received by him pursuant to the deed after satisfaction of those debts ranking in priority in accordance with the provisions of the Act according to a timetable which referred to the percentage of their debts which creditors of…