National Australia Bank Limited v Pollak [2001] FCA 1408

FEDERAL COURT OF AUSTRALIA

National Australia Bank Limited v Pollak [2001] FCA 1408

bankruptcy – foreign judgment debt enforced by an order of this Court – respondent and sister joint and severally liable – bank entered into agreement with respondent's sister discharging her from the debt – agreement between bank and sister amended to include clause providing for explicit reservation of the bank's rights against the respondent – validity and effectiveness of reservation clause in construing agreement – whether agreement between the bank and the sister at time initially entered into an accord executory, accord and satisfaction or accord and conditional satisfaction – construction of agreement – whether agreement a release of a single debtor releasing all other joint debtors or a covenant not to sue.

bankruptcy – Mareva injunction ordered over all the respondent's property and assets on application by the bank – whether Mareva injunction prevented respondent complying with bankruptcy notice. Bankruptcy Act 1966 (Cth), s 41(3)(b) McDermott v Black (1940) 63 CLR 161, applied Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574, cited Osborn v McDermott [1998] 3 VR 1, applied Bartlett v Mouncey [1998] FCA 418, cited Re EWA [1901] 2 KB 624, applied Dorgal v Buckley (1996) 22 ACSR 154, followed Gardiner v Moore (No. 2) [1969] 1 QB 55, cited State of New South Wales v McCloy Hutcherson Pty Ltd (1993) 43 FCR 489, cited Murray-Oates v JJADD Pty Ltd (1999) 76 SASR 38, cited Walker v Bowry (1924) 35 CLR 48, considered & distinguised Boscolo v Botany Council [1996] FCA 897, applied Wiltshire-Smith v Mellor Olsson (1995) 57 FCR 572, distinguished Deputy Commissioner of Taxation v Stuart-Jones (2000) 45 ATR 33, cited Re Sedgwick; Ex parte Sedgwick (1888) 5 Morr 262, applied Re Solomon; Ex parte Reid (1986) 10 FCR 423, distinguished Penning v Steel Tube Supplies Pty Ltd (1988) 18 FCR 568, referred to Re Ousley; Ex parte Commissioner of Taxation (1994) 48 FCR 131, followed Re Ling; Ex parte Enrobook Pty Ltd (1996) 142 ALR 87, followed Ling v Enrobook Pty Ltd (1997) 74 FCR 19, applied NATIONAL AUSTRALIA BANK LIMITED (ABN 12 004 044 937) v JOSEPH POLLAK N7978 of 2000 MADGWICK J 5 OCTOBER 2001 SYDNEY