National Australia Bank v Freeman [2002] FCA 244

FEDERAL COURT OF AUSTRALIA

National Australia Bank v Freeman [2002] FCA 244

BANKRUPTCY – contested creditor's petition – application for sequestration order pursuant to s 43 Bankruptcy Act 1966 (Cth) based on an enforcement warrant pursuant to judgment debt of Supreme Court of Queensland – whether the Court should go behind the judgment of the Supreme Court of Queensland and the Queensland Court of Appeal – no prima facie case of fraud or collusion or miscarriage of justice made out such as to impeach the judgments of the Supreme Court of Queensland and the Queensland Court of Appeal – no substantial reason shown for questioning whether there is in truth and reality a debt due to the petitioning creditor – whether a claim that the sale by the receiver appointed by the petitioning creditor of the debtor's property was at an undervalue can provide a set-off or cross-claim for the debtor against the petitioning creditor, having regard to a contract providing that the receiver is the agent of the mortgagor – stay of proceedings under s 52(3) Bankruptcy Act 1966 (Cth)

Bankruptcy Act 1966 (Cth), s 52(3)

Supreme Court Act 1995 (Qld)

Contracts Review Act 1980 (NSW), s 7 and s 19

Udovenko and Others v Mitchell (1997) 79 FCR 418, applied

Commonwealth Bank of Australia v Muirhead (1997) 1 Qd R 567, cited

NAB Limited v Troiani and Others [2001] QSC 077, cited

Weaver, G.A. and C.R. Craigie (1990) Law Relating to Banker and Customer in Australia, 2nd ed., vol. 2, Sydney: LBC Information Series

Butt, P. Conveyancing and Property (1998) 72 ALJ 15

O'Brien, D. Receiver's Duties When Selling Assets (2001) 9 Insolv LJ 180

NATIONAL AUSTRALIA BANK LIMITED V LYNTON NOEL CHARLES FREEMAN

No Q 7001 of 2001

SPENDER J

BRISBANE 12 MARCH 2002

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 7001 OF 2001