Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Moran v Robertson [2012] FCA 371 Citation: Moran v Robertson [2012] FCA 371
Appeal from: Robertson v Moran [2011] FMCA 496
Parties: RUSTY JOHN MORAN AND ANOR v ALEXANDER ROBERTSON AND ANOR
File number: NSD 1380 of 2011
Judge: FLICK J
Date of judgment: 13 April 2012
Catchwords: BANKRUPTCY – application to have personal insolvency agreements set aside – terms of agreement unreasonable – derisory dividend payable to creditors – some creditors electing not to participate in distribution GUARANTEES – construed strictly in favour of guarantor PRACTICE AND PROCEDURE – filing of written submissions after hearing – submissions manifestly in excess of that contemplated TRUSTS – personal liability of trustee
Legislation: Bankruptcy Act 1966 (Cth) ss 81, 116, 188, 222, 239 Bankruptcy Legislation Amendment Act 2004 (Cth) Federal Court of Australia Act 1976 (Cth) s 27
Cases cited: Agushi, Re; Ex parte Farrow Mortgage Services Pty Ltd (1992) 8 ACSR 549, considered Andrew Nicholas Emmett, Re; Ex parte Beneficial Finance Corporation Ltd (unreported, O'Loughlin J, 16 December 1991), considered Ankar Proprietary Ltd v National Westminster Finance (Australia) Limited (1987) 162 CLR 549, cited Beard v Prestige Baking Industries Pty Ltd (1981) 52 FLR 384, considered Brennan, Re; Ex parte Stokes (Australasia) Ltd (unreported, Morling J, 31 May 1988), considered Codrington, Re; Ex parte Don McKay Tourist & Charter Pty Ltd (unreported, Burchett J, 1 September 1989), considered Dingle, Re; Westpac Banking Corporation v Worrell (1993) 47 FCR 478, considered Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28, 214 CLR 318, cited Frost v Sheahan as Trustee of the Bankrupt Estate of Allen Gordon Frost [2012] FCAFC 46, cited Helvetic Investment Corporation Pty Ltd v Knight (1984) 9 ACLR 773, applied Khera v National Australia Bank Limited (1996) 71 FCR 133, considered Knight v Beyond Properties Pty Ltd [2007] FCAFC 170, 242 ALR 586, cited Lockett, Re; Ex parte Northern Equity Ltd (unreported, French J, 6 April 1992), considered Lords Holdings Pty Ltd v Brizzi [2004] NSWSC 371, considered Mills, Re; Ex parte Lloyd's (1997) 73 FCR 551, considered Osborne v Gangemi [2011] FCA 1252, considered Palazzolo v Ex parte Discusso (unreported, Neaves J, 19 July 1991), cited Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd [2005] FCAFC 131, 220 ALR 211, cited Richards, Re; Ex parte Beneficial Finance Corporation Limited (unreported, Jackson J, 17 March 1986), considered Robertson v Moran [2011] FMCA 496, affirmed Tripodi, Re; Ex parte Col Johnson Pty Limited (unreported, Burchett J, 22 January 1987), considered Westpac Banking Corporation v Hingston (No 2) [2010] FCA 116, 117 ALD 552, considered O'Donovan, J and Phillips J C, Modern Contract of Guarantee (Lawbook Co., subscription service)
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