Black v Andrews [2001] FCA 1416

FEDERAL COURT OF AUSTRALIA

Black v Andrews [2001] FCA 1416

BANKRUPTCY –creditors petition – motion of debtor seeking order in relation to petition on basis of an estoppel or counter claim or other sufficient cause – no basis for estoppel – no evidence of solvency – false allegations attacking debt in an attempt to go behind judgment debt – any basis for counter claim was within knowledge of debtor prior to process leading to judgment debt – no other sufficient cause – sequestration order made. Bankruptcy Act 1966 (Cth) s 40(1)(g), s 52 Wren v Mahoney (1972) 126 CLR 212 referred to Ling v Enrobook (1997) 143 ALR 396 referred to Cain v Whyte (1933) 48 CLR 639 applied Re Schmidt (1968) 13 FLR 111 referred to Stuart Alexander Black and Others v Peter John Andrews N 7152 of 2001 ALLSOP J SYDNEY 28 SEPTEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7152 of 2001

BETWEEN: STUART ALEXANDER BLACK, VAUGHAN LEE CHAPMAN AND ANDREW PHILLIP CARTER, TRADING AS CHAPMAN AND EASTWAY

APPLICANT CREDITOR

AND: PETER JOHN ANDREWS

RESPONDENT DEBTOR

JUDGE: ALLSOP J

DATE OF ORDER: 28 SEPTEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. a sequestration order be made against the estate of Peter John Andrews; 2. the motion brought by amended notice of motion dated 11 September 2001 be dismissed with costs; 3. the applicant creditor's costs including the creditor's costs of the motion and including reserved costs, if any, be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.

The Court notes that the date of the act of bankruptcy is 16 October 2000. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA