Commonwealth Bank of Australia v Jeans [2005] FCA 569

FEDERAL COURT OF AUSTRALIA Commonwealth Bank of Australia v Jeans [2005] FCA 569

BANKRUPTCY – Creditor's petition where petition based on judgment debt - opposition to creditor's petition - where Court invited to determine as a preliminary question whether it ought to exercise its discretion to go behind the judgment to ascertain the existence of a real debt - whether reason has been shown for questioning the debt to be separately investigated by the Court as a preliminary issue prior to any further hearing of the creditor's petition Bourke v Beneficial Finance Corporation Ltd (1993) 47 FCR 264 distinguished Corney v Brien (1951) 84 CLR 343 cited Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 470 cited Deangrove Pty Ltd v Commonwealth Bank of Australia[2003] FCA 268 cited In re Frazer; Ex parte Central Bank of London (1892) 2 QB 633 distinguished Jeans v Commonwealth Bank of Australia [2003] FCAFC 309 cited Makhoul v Barnes (1995) 60 FCR 572 cited Wolff v Donovan (1991) 29 FCR 480 cited Wren v Mahony (1971-1972) 126 CLR 212 applied COMMONWEALTH BANK OF AUSTRALIA v JOHN ANTHONY JEANS NSD 1079 OF 2004 HELY J 6 MAY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1079 OF 2004

BETWEEN: COMMONWEALTH BANK OF AUSTRALIA

APPLICANT

AND: JOHN ANTHONY JEANS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 6 MAY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The following question be determined before any further trial on the creditor's petition: 'Whether the Court ought to exercise its discretion to go behind the judgment on which the petition is based, on grounds 1 to 8 identified in the notice of intention to oppose the petition, having regard to the following judgments relating to the petition: (a) [2003] FCA 268; (b) [2003] FCA 470; (c) (2003) 204 ALR 327; (d) [2004] HCATrans 548, and on the assumption that there is a prima facie case that the debtor will establish the admissible factual matters contained in the affidavits filed to date in opposition to the petition.' Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.