TOONE V. GREGORY & HICKEY PTY. LIMITED & ANOR

IN THE HIGH COURT OF AUSTRALIA

_... GREGORY & HICKEY PTY. LIMITED

REASONS FOR JUDGMENT

Judgment delivered at... Sydney J. 4) Goutey, Gort. Print, Mb

ontea/si on... Wednesday, 8th Septe

+3 i> iS ed

GREGORY & HICKEY PTY. LTD. & ANOR. ORDER Appeal allowed with costs. Discharge order of

Court of Bankruptcy. In lieu thereof order that order of

sequestration dated the 13th February 1951 be annulled.

ve

GREGORY & HICKEY PTY. LTD. & ANOR.

JUDGMENT. FULLAGAR J. xirro J. TAYLOR J.

This is an appeal from an order of the Federal Court of Bankrupty (Clyne J.) refusing an application by the appellant, Colin Toone, for the annulment of an order of seques- tration made against him by that Court on the 13th February 1951. The petitioning creditor was the respondent company, Gregory & Hickey Pty. Ltd. The act of bankruptcy alleged was that a writ of fi. fay issued in respect of a judgment debt, had been returned unsatisfied. The judgment was a judgment entered in default of appearance in an action for the price of goods sold and delivered. The substantial ground of the application, and of the appeal to this Court, was that the appellant was never indebted to the respondent company.

The existence of the judgment debt as such cannot be disputed. It has, however, been long settled that a court of bankruptey in all cases may, and in many cases must, "go behind" a judgment and satisfy itself as to whether the judgment was entered in respect of an antecedent debt really existing. It is nothing to the point that the judgment is a judgment of a court having jurisdiction and that it cannot by any means be set aside: In re Fraser: Ex parte Central Bank of London, (1892) 2 Q.B. 633. The law on the subject has recently been fully considered by this Corney v. Brien, (1951) 8% C.L.R. 343. That was a case

in which the appeal was from a sequestration order. The present