Ex Parte Tonma International Pty Ltd v Wiltshire, Andrew John [1995] FCA 975

CATCHWORDS BANKRUPTCY - Creditor's petition - whether Court should exercise its discretion to go behind the judgment

Bankruptcy Act ss41(6A) 52

Wolff v Donovan (1991) 29 FCR 480 ANDREW JOHN WILTSHIRE EX PARTE TONMA INTERNATIONAL PTY LTD V ANDREW JOHN WILTSHIRE No VP 199 of 1995 NORTHROP J MELBOURNE 29 NOVEMBER 1995

IN THE FEDERAL COURT OF AUSTRALIA EXERCISING FEDERAL JURISDICTION No VP 199 of 1995 IN BANKRUPTCY

BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA

RE: ANDREW JOHN WILTSHIRE Debtor EX PARTE: TONMA INTERNATIONAL PTY LTD (ACN 005 186 425) Petitioner AND: ANDREW JOHN WILTSHIRE Respondent

COURT: NORTHROP J PLACE: MELBOURNE DATE: 29 NOVEMBER 1995

REASONS FOR JUDGMENT

This is a hearing of a petition brought by the petitioner as a judgment creditor against Andrew John Wiltshire as debtor. Acting on the certificate given by a Registrar in Bankruptcy under Bankruptcy Rule 22 and the affidavits filed on behalf of the petitioner I am satisfied that the petitioner has established its petition, as amended, and thus normally a sequestration order should be made. By an amended notice of intention to appear given under Bankruptcy Rule 106, the debtor is opposing the making of the sequestration order on stated grounds which, in essence, claim that he is not indebted to the petitioner. The issue before the Court is whether the debtor is indebted to the petitioner as alleged in paragraph 2 of the petition.

The petitioner relies on an act of bankruptcy by the debtor which occurred on 18 November 1994 resulting from his failure to comply with a bankruptcy notice relating to a judgment debt of $14281.67 ($11765.80, interest $477.87, costs $2038.00) obtained in the Magistrates' Court Melbourne on 3 September 1992. The debt related to goods sold and delivered by the petitioner to the debtor under the business name of "Marbles Kidswear". The grounds of opposition, as stated by the debtor in his amended notice, are: "(a)the debtor is able to pay his debts; (b) for other sufficient cause a sequestration order ought not to be made; (c) the Debtor is not liable to the Petitioning Creditor; (d) the debt on which the Petitioning Creditor relies is not owed by the Debtor but by a company, RAW Marketing Pty Ltd."