Shlakht v Nissan Finance Corporation Limited [1991] FCA 943

N D: RT OF Al

ECE ae I No VP 621 of 1990 GENERAL DIVISION RE: MARC SHLAKHT (Judgment Debtor) EX PARTE: Nis FINANCE ie) ION LIMITED {Judgment Creditor) Coram: Ryan J Date: 26 June 1991 Piace: Melbourne + IN. R 'D NT 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 facie right to a sequestration order unless the court is satisfied by the debtor in terms of s.52 (2) of the Act that

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 jointly with his wife and his nephew, respectively. The debtor conducts a business in partnership with that nephew as

a stall holder at the Caribbean Markets. 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.

2. 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