Corney v Brien [1951] HCA 31

Cons |

aa

Foll Appl Cons Foll Foll Foll/Cons Cons VDGT | 'Pinl Vieri V . oe Sy Si W Po fee ee, ign, Bama: iis, recon, lito Mele ' Pelee ron Haase Prpetsad 13 APR 9 seme oR ths Eg) AFCR 64) Wires Shell ested seh a8 cay Australia at) Be) 84 C.L.R.] 5 YF AUSTRALIA. 343 Appl og eee Foheatioes) — Vegeaah te) (HIGH COURT OF AUSTRALIA] CORNEY . § x 5 : X 2 APPELLANT ; AND BRIEN s g 5 ' 5 i J . ResponpeEnt. ON APPEAL FROM THE FEDERAL COURT OF BANKRUPTCY. Bankrupley—Sequestration order—Judgment debt—V alidity—Power of Court to go H.C. ov A. behind judgment—Bankruptey Act 1924-1950 (No. 87 of 1924—No. 80 of 1950), 1951. 8. 56 (2) (a). — 56 (2 a fa Sypyery, The Bankruptcy Act 1924-1950 (Cth.), s. 56 (2) provides that "(a) At the *! hearing the court—(a) shall require proof of the debt of the petitioning ae ae creditor . . . ; and (b) if satisfied with the proof may make a seques. """@ 14+ tration order . . ." Under this section the Bankruptcy Court has Dixon, jurisdiction to go behind a judgment obtained by default or compromise vend," and to inquire whether the judgment is founded on a real debt. If the "ani" Kitto JJ.

judgment is not so founded the Court ought not to make a sequestration order.

Decision of the Federal Court of Bankruptey (Clyne J.) reversed.

Apprat from the Federal Court of Bankruptcy.

John Cyril Brien petitioned the Federal Court of Bankruptcy, District of New South Wales and the Australian Capital Territory, that a sequestration order be made in respect of the estate of William Raymond Corney, of Viewland Street, Bundanoon, New South Wales, and the estate of Francis Joseph Irvine, of Law Street, Long Jetty, Ettalong, in the said State, on the ground that they had failed to comply with the requirements of a bankruptcy notice served upon them respectively in respect of the sum of £517 14s. Od., together with interest at the rate of £5 per cent per annum, calculated from 19th January 1949, being the amount claimed by Brien as being the amount due on a final judgment