Commonwealth Bank of Australia v Jeans [2005] FCA 978

FEDERAL COURT OF AUSTRALIA Commonwealth Bank of Australia v Jeans [2005] FCA 978 BANKRUPTCY – Creditor's petition where petition based on judgment debt – opposition to creditor's petition – whether Court ought to exercise its discretion to go behind the judgment to ascertain the existence of a real debt – discretion not exercised Bankruptcy Act 1966 (Cth) s 43, 52(1) Commonwealth Bank of Australia v Jeans [2005] FCA 569 cited Corney v Brian (1950-1951) 84 CLR 343 applied Deangrove Pty Ltd v Commonwealth Bank of Australia[2003] FCA 268 cited Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 470 cited In re Hawkins; Ex Parte Troup (1895) 1 QB 404 cited Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309 cited Jeans v Commonwealth Bank of Australia [2004] HCATrans 548 cited Simon v Vincent J O'Gorman Pty Ltd (1979) 41 FLR 95 cited Udovenko v Mitchell (1997) 79 FCR 418 cited Wren v Mahoney (1971-1972) 126 CLR 212 applied COMMONWEALTH BANK OF AUSTRALIA v JOHN ANTHONY JEANS NSD 1079 OF 2004 HELY J 18 JULY 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: 18 JULY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The preliminary question, directed for determination in Commonwealth Bank of Australia v Jeans [2005] FCA 569, as to whether the Court ought to exercise its discretion to go behind the judgment on which the creditor's petition is based, be determined in the negative. 2. The parties draft short minutes of order to give effect to the determination given in order 1, and for the for the further conduct of the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.