Re: Luciano; Ex Parte: Commonwealth Bank of Australia [1997] FCA 1589

J

| JUDGMENT No. A234 LE. IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION No. VP 636 of 1996 BANKRUPTCY DISTRICT OF THE

STATE OF VICTORIA

RE: ORLANDO LUCIANO' Judgment Debtor -EX PARTE: COMMONWEALTH BANK OF AUSTRALIA Judgment Creditor JUDGE: Jenkinson J ' DATE: 17 March 1997 a PLACE: Melbourne J RECEIVED |; 16NOV 1998 REASONS FOR JUDGMENT \. FEDERAL COURT OF k PRENOIPAL PREC TRY

Hearing of a bankruptcy petition.

The debt alleged to be owing by the debtor to the petitioning creditor, and to satisfy the conditions specified in paragraphs 44(1) (a) and 44(1)(b) of the Bankruptcy Act 1966, is a judgment debt of which $7,169,322.63 is alleged to be due and unpaid. The petitioning creditor has at material times been a "secured creditor" within the meaning of that expression in the

Bankruptcy Act 1966 ("the Act").

Section 44 of the Act provides:

"44 (1) A creditor's petition shall not be presented against a debtor unless:

(a) there is owing by the debtor to the petitioning creditor a debt that amounts to $1,500 or 2 or more debts that amount in the aggregate to $1,500, or, where 2 or more creditors join in the petition, there is owing by the debtor to the several petitioning creditors debts that amount in the aggregate to $1,500;

(b) that debt, or each of those debts, as the case may be: (i) is a liquidated sum due at law or in equity or partly

at law and partly in equity; and (ii) is payable either immediately or at a certain future

time; and (c) the act of bankruptcy on which the petition is founded was committed within 6 months before the presentation of the petition. 44 (2) Subject to subsection (3), a secured creditor shall, for

the purposes of paragraph (1) (a), be deemed to be a creditor only to the extent, if any, by which the amount of the debt owing to him exceeds the value of his security.