McLeod v Beneficial Finance Corporation Ltd [1995] FCA 789

CATCHWORDS BANKRUPTCY - bankruptcy notice - application to set aside - whether judgment stayed by agreement between the parties or by intervening equitable rights in applicants - whether respondent waived right to enforce judgment - single judgment obtained against primary debtor and against guarantor - whether single bankruptcy notice based on judgment valid - whether Court should go behind judgment - Court concerned with reality of debtor/creditor relationship between parties. Bankruptcy Act 1966 (Cth) ss 40(1)(g), 46 (1) Re Seers 17 ABC 11 Re Williams; Ex parte General Credits Ltd (1983) 68 FLR 202 The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 Re Neate; Ex Parte Pegasus Leasing Limited (an unreported decision of the Federal Court, 13 March 1995) Re Myers; Ex parte Mulholland (1932) 5 ABC 128 Re Meiklejohn & Anor; Ex parte Barnard [1961] Qd R 70 Corney v Brien (1951) 84 CLR 343 Wren v Mahony (1972) 126 CLR 212 Re Ferguson; Ex parte E.N. Thorne & Co Pty Ltd (In Liq) (1969) 14 FLR 311 No. SN 267 of 1995 DONALD BRUCE McLEOD & LOIS MARGARET McLEOD v BENEFICIAL FINANCE CORPORATION LIMITED Branson J Adelaide 5 October 1995

IN THE FEDERAL COURT OF AUSTRALIA) ) SOUTH AUSTRALIA DISTRICT REGISTRY) ) GENERAL DIVISION ) No. SN 267 of 1995 ) BANKRUPTCY DISTRICT OF THE ) ) STATE OF SOUTH AUSTRALIA ) BETWEEN: Re: DONALD BRUCE McLEOD and LOIS MARGARET McLEOD - and - Ex parte:BENEFICIAL FINANCE CORPORATION LIMITED REASONS FOR JUDGMENT CORAM: Branson J PLACE: Adelaide DATE: 5 October 1995 The applicants, Donald Bruce McLeod and Lois Margaret McLeod, have applied to set aside a bankruptcy notice served on each of them on 5 May 1995. The recital of the bankruptcy notice, so far as is here relevant, is in the following terms:- "WHEREAS BENEFICIAL FINANCE CORPORATION LIMITED of 91 King William Street, Adelaide in the State of South Australia (hereinafter referred to as "the Judgment Creditor") has claimed that the sum of $3,063,619.47 is due by you to the Judgment Creditor being the sum of $2,518,445.10 under a final judgment obtained by the Judgment Creditor against you in the Supreme Court of New South Wales on the 19th day of April 1993 being a judgment the execution of which has not been stayed ....."