Re Neate, E.A & Anor v Ex parte Pegasus Leasing Ltd [1995] FCA 543

C A T C H W O R D S BANKRUPTCY - bankruptcy notice - judgment against one party as primary debtor and against second party as guarantor - form of judgment - whether there should have been one judgment or two judgments. Bankruptcy Act 1966 (Cth) Hussey v Tsai Pty Ltd (unreported: judgment of Sweeney J delivered 14 June 1989). James v Federal Commissioner of Taxation (1955) 93 CLR 631 LEP Air Services Ltd v Rollowswin Investment Ltd [1971] 3 All ER 45 Moschi v LEP Air Services Ltd [1973] AC 331 RE: ELIZABETH ANNE NEATE AND DAVID WILLIAM NEATE EX PARTE:PEGASUS LEASING LIMITED

O'LOUGHLIN J. ADELAIDE 13 March 1995

IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) ) No. SN 691 of 1994 GENERAL DIVISION ) ) BANKRUPTCY DISTRICT OF THE STATE ) ) OF SOUTH AUSTRALIA )

RE : ELIZABETH ANNE NEATE AND DAVID WILLIAM NEATE EX PARTE : PEGASUS LEASING LIMITED MINUTES OF ORDER

JUDGE MAKING ORDER : O'LOUGHLIN J. WHERE MADE : ADELAIDE DATE OF ORDER : 13 MARCH 1995 THE COURT ORDERS THAT: 1. The Bankruptcy Notice be set aside. 2. The respondent, Pegasus Leasing Limited pay the applicants' costs to be taxed in default of agreement. Note: Settlement and entry of order is dealt with in Bankruptcy Rule 124.

IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) ) No. SN 691 of 1994 GENERAL DIVISION ) ) BANKRUPTCY DISTRICT OF THE STATE ) ) OF SOUTH AUSTRALIA )

RE : ELIZABETH ANNE NEATE AND DAVID WILLIAM NEATE EX PARTE : PEGASUS LEASING LIMITED

REASONS FOR DECISION CORAM: O'Loughlin J. 13 March 1995 Application to set aside a bankruptcy notice. On 19 September 1994 the judgment creditor, Pegasus Leasing Limited, obtained a judgment by default in the District Court of South Australia against Anne Elizabeth Neate and David William Neate ("the judgment debtors"). The judgment creditor applied to this court for leave to issue a bankruptcy notice directed to the judgment debtors jointly. A sealed copy of the judgment was attached to that application. The relevant passage in the judgment was in these terms: "It is this day adjudged that the plaintiff" (i.e. the judgment creditor) "recover from the defendants" (i.e. the judgment debtors) "the sum of $648,673.99 (inclusive of interest) and its costs of action to be taxed."