Miles, Joyce Ruby v The Shell Co of Australia [1998] FCA 625

FEDERAL COURT OF AUSTRALIA

BANKRUPTCY ‑ Sequestration order ‑ Judgment debt ‑ Power of court to go behind judgment ‑ Debt based on guarantee by married woman ‑ Whether defence to debt based on unconscionable conduct by creditor or on principle in Yerkey v Jones

GUARANTEE ‑ Guarantor under disability ‑ Whether lender knew or ought to have known of disability ‑ Unconscionability ‑ Equitable presumption of an invalidating tendency ‑ Credit extended to company of which wife a director and shareholder ‑ Whether presumption applies ‑ Whether presumption part of Australian law.

Bankruptcy Act 1966 s 52

Yerkey v Jones (1939) 63 CLR 649 Warburton v Whiteley (1989) NSW Conv R 55‑453 Australia and New Zealand Banking Group Ltd v McGee (1994) ASC 56‑278 European Asian of Australia Ltd v Kurland(1985) 8 NSWLR 192 Akins v National Australia Bank (1994) ASC 56‑279 Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 National Australia Bank Ltd v Garcia (1997) ANZ Conv R 34 Teachers Health Investments Pty Ltd v Wynne (1997) ANZ Conv R 40 Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91 Bank of Victoria Ltd v Mueller [1925] VLR 642 Howes v Bishop [1909] 2 KB 390 Talbot v Von Boris (1910) 27 TLR 95; [1911] 1 KB 854 Cain v White (1933) 48 CLR 639 JOYCE RUBY MILES v THE SHELL COMPANY OF AUSTRALIA (ACN 004 610 459) VG 7674 OF 1997 SUNDBERG J 9 JUNE 1998 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 7674 of 1997

BETWEEN: JOYCE RUBY MILES

Applicant

AND: THE SHELL COMPANY OF AUSTRALIA (ACN 004 610 459)

Respondent

JUDGE: SUNDBERG J

DATE OF ORDER: 9 JUNE 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The respondent's costs of and incidental to the application be taxed and paid in accordance with s 109 of the Bankruptcy Act 1966 out of the estate of the applicant, with the same priority as if a sequestration order had been made on the hearing of this application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.