Kwan, E. v. Hastings Deering (Soloman Islands) Ltd [1987] FCA 465

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CATCHWORODS

BANKRUPTCY - application to set aside bankruptcy notice - going behind judgment debt - defence mentioned at trial - debtor not present at trial - no debt in truth and reality.

GUARANTEE AND INDEMNITY - bill of sale given by debtor - directors' guarantee in support - bill of sale void due to creditor's negligence - debtor entitled to reduction of liability - implied condition that creditor will take reasonable steps to perfect principal security - complete discharge.

Re: Edward Kwan

Ex parte: Hastings Deering (Solomon Islands) Limited Qld BN 956 of 1987

PINCUS J. BRISBANE 21 AUGUST 1987

IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION

BANKRUPTCY DISTRICT OF THE SOUTHERN )

DISTRICT OF THE STATE OF QUEENSLAND )

QLD BN956 of 1987

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RE: EDWARD KWAN Judgment Debtor

EX PARTE: HASTINGS DEERING (SOLOMON ISLANDS)

LIMITED Creditor MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 21 AUGUST 1987 WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

The bankruptcy notice dated 2 June 1987 be set aside.

Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

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IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION ) QLD BN956 of 1987

BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND

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RE: EDWARD KWAN Judgment Debtor

EX PARTE: HASTINGS DEERING (SOLOMON ISLANDS) LIMITED

Creditor

PINCUS J. 21 AUGUST 1987

REASONS FOR JUDGMENT

This 1s an application to set aside a bankruptcy notice. The judgment in question is one on a guarantee given in the High Court of the Solomon Islands, and registered in this State. The principal ground of the application is that the judgment debt should be gone behind because, but for its failure to register a security given by the principal debtor, the creditor would have

had no need to resort to the guarantee.