Australia & New Zealand Banking Group Ltd v Foyster [2000] FCA 400

FEDERAL COURT OF AUSTRALIA Australia & New Zealand Banking Group Ltd v Foyster [2000] FCA 400 BANKRUPTCY – Creditor's petition – sequestration order – petitioning creditor is entitled to refuse a tender of payment of the debt and to proceed with the petition – onus of proving sufficiency of assets to pay debts lies on the respondent – recalcitrance of the debtor is insufficient grounds for a sequestration order – even if the debtor establishes solvency, the Court retains a discretion whether or not to dismiss the petition – debts include debts which will fall due in the reasonably immediate future pursuant to existing obligations – whether the respondent's assets were readily realisable – whether there was a market for the assets

WORDS AND PHRASES – "able to pay his debts" Bankruptcy Act 1966 (Cth) ss 5(1), 41(7), 52(1)(c), 52(2), 52(2)(a), 109(1)(a) McIntosh v Shashoua (1931) 46 CLR 494 applied International Alpaca Management Pty Ltd v Ensor [1999] FCA 72 applied Re Sarina; Ex Parte Wollondilly Shire Council (1980) 32 ALR 596 applied Trojan v Corporation of Hindmarsh (1987) 16 FCR 37 applied Bank of Australasia v Hall (1907) 4 CLR 1514 applied St George Bank Ltd v Helfenbaum [1999] FCA 1337 referred to AUSTRALIA & NEW ZEALAND BANKING GROUP LTD v LLOYD FOYSTER N 7871 OF 1999 HELY J 31 MARCH 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7871 OF 1999

BETWEEN: AUSTRALIA & NEW ZEALAND BANKING GROUP LTD

APPLICANT

AND: LLOYD FOYSTER

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 31 MARCH 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. A sequestration order be made against the estate of Lloyd Foyster. 2. The petitioner's costs of and incidental to the petition be taxed and paid in accordance with s 109(1)(a) of the Act. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.