Re Marshall, J.G. v. Ex parte James Hardie & Coy Pty Ltd [1985] FCA 304

CATCHWORDS

BANKRUPTCY - going behind judgment - default District Court judgment - unsuccessful application to set aside in District Court.

ESTOPPEL - Business Names Act (Qld) - effect of registration

thereunder.

PRACTICE - judgment against two defendants where onty one can be

liable, but not both - invalid.

RE: JQHN GRATTAN MARSHALL EX PARTE: JAMES HARDIE & COY PTY LTD

OLD PET 262 OF 1985

PINCUS J. BRISBANE 8 JULY 1985

IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ) QLD PET 262 or 1985

BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF QUEENSLAND )

RE: JOHN GRATTAN MARSHALL

EX PARTE: JAMES HARDIE & COY PTY LTD

PINCUS J. 8 JULY 13585

REASONS FOR JUDGMENT

This is a contested creditor's petition in which a judgment debtor, John Grattan Marshall, seeks to have this Court go behind the judgment debt relied on in the petition of James

Hardie & Coy Pty Ltd, the petitioning creditor.

The circumstances are, perhaps, somewhat urusual in that after 1ssue of the petition, based on the judament, an unsuccessful application was made to the District Court toa set the judgment aside. The grounds of that application included allegations placed before this Court and dealt with below. To that extent, then, the determination of the issue here involves a re-consideration of a matter specifically raised in the District Court. The District Court heard some cross-sxamination, I nave

not.

On 29 March 1983 the judgment debtor applied cto the petitioning creditor for the opening of a "credit ledger account" in the name "Townsville Pumping & Hydraulics". A credit ledger account had the effect of allowing the proprietor of the firm to pay for goods supplied on order up to "the end of the month following (the) month of delivery". The application ftorm also contained this clause: "I/We agree that 1f, after approval of credit, there 18 a change of name or ownership or the pusiness 15s incorporated as a company the credit facility shall be deemed cancelled unless and until James Hardie & Coy Pty Ltd are notified in writing of such change and approve of same". After the application for a credit facility was accepted, the debtor ordered goods from the petitioning creditor onan order form which he or an employee of his prepared. The form contained, inter alia, the Dusiness name at the top and was signed by the debtor at the foot. Goods were supplied in accordance with the orders, and credit was given in accordance with the credit