ANZ Banking Group Ltd v Elferkh - [1999] FCA 1049

FEDERAL COURT OF AUSTRALIA
ANZ Banking Group Ltd v Elferkh [1999] FCA 1049
BANKRUPTCY – creditor’s petition – whether sequestration order would be futile – whether unsigned creditor’s petition a nullity – whether absence of signature merely a formal defect or irregularity – whether appropriate to permit creditor to sign petition at the hearing
Bankruptcy Act 1966 (Cth), s52(2), s47(1A), s306
Federal Court Rules, Order 77 rule 16(1), Order 77 rule 16(2)
Radich v Bank of New Zealand (1993) 116 ALR 676, cited
Re Betts; ex parte Betts [1897] 1 QB 50, referred to
Re Taylor; ex parte Ryan (1986) 14 FCR 472, not followed
Deputy Commissioner of Taxation (Vic) v Boxshall (1988) 83 ALR 175, referred to
Re Barry (1862) 1 W&W (IE&M) 174, cited
Russell v ANZ Banking Group Ltd (1987) 14 FCR 72, cited
Re a Debtor (No.3 of 1902); ex parte Petitioning Creditors (1902) 86 LT 688, referred to
ANZ BANKING GROUP LTD v ADEL ELFERKH
NG8444 OF 1998
EMMETT J
22 JULY 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 8444 OF 1998

IN THE MATTER OF ADEL ELFERKH

BETWEEN:

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
(ACN 005 357 522)
Applicant

AND:

ADEL ELFERKH (also known as EDDY ELFERKH, EDDIE ELFERKH and EDDYE ELFERKH)
Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

22 JULY 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Leave be given to the Applicant Creditor’s solicitor to sign the petition.
2.A sequestration order be made against the estate of Adel Elferkh.
3.The Applicant Creditor’s costs, other than the costs of 22 July 1999, (including reserved costs, if any) be taxed and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.
THE COURT NOTES THAT:
4.The date of the act of bankruptcy is 31 July 1998.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 8444 OF 1998

IN THE MATTER OF ADEL ELFERKH

BETWEEN:

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
(ACN 005 357 522)
Applicant

AND:

ADEL ELFERKH (also known as EDDY ELFERKH, EDDIE ELFERKH and EDDYE ELFERKH)
Respondent

JUDGE:

EMMETT J

DATE:

22 JULY 1999

PLACE:

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

I have before me a creditor’s petition under the Bankruptcy Act 1966 (“the Act”), in which Australia & New Zealand Banking Group Limited (“the Bank”) is the petitioner. The petition relates to the estate of Mr Adel Elferkh (“the Debtor”).
The Debtor committed an act of bankruptcy on 31 July 1998 by failing, prior to that day, to comply with the requirements of a bankruptcy notice. I have evidence as to:
(a) the matters stated in the petition,
(b) the service of the petition, and
(c)the fact that the debt on which the Bank relies is still owing,
and I am satisfied as to the proof of those…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ANZ Banking Group Ltd v Elferkh

Details

AGLC: ANZ Banking Group Ltd v Elferkh [1999] FCA 1049
Case: [1999] FCA 1049
Decision Date: 22 JULY 1999

CaseChat Overview and Summary

ANZ Banking Group Ltd brought a petition for sequestration against Adel Elferkh in the Federal Circuit Court, seeking to have him declared bankrupt. The dispute centred around Elferkh's inability to meet his financial obligations, specifically a debt owed to ANZ. The primary legal issue the court needed to address was whether Elferkh had committed an act of bankruptcy, as defined by the Bankruptcy Act 1966, which would justify the sequestration of his estate.

The court considered whether the act of bankruptcy had indeed occurred on 31 July 1998, as claimed by ANZ. This required scrutiny of the evidence provided by ANZ, including documentation of the outstanding debt and any relevant correspondence between ANZ and Elferkh. The court also had to determine if Elferkh had any defences or mitigating factors that could prevent the sequestration order. After reviewing the evidence, the court concluded that Elferkh had indeed committed an act of bankruptcy by failing to pay the debt when it fell due.

In light of the evidence presented and the lack of any defence from Elferkh, the court found in favour of ANZ. It granted leave for ANZ's solicitor to sign the petition and ordered that a sequestration order be made against Elferkh's estate. Additionally, the court ruled that the costs incurred by ANZ, excluding those from 22 July 1999, should be taxed and paid from Elferkh's estate as per the Bankruptcy Act 1966.

Orders

Orders of the court

1. Leave be given to the Applicant Creditor’s solicitor to sign the petition.

2. A sequestration order be made against the estate of Adel Elferkh.

3. The Applicant Creditor’s costs, other than the costs of 22 July 1999, (including reserved costs, if any) be taxed and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.

THE COURT NOTES THAT:

4. The date of the act of bankruptcy is 31 July 1998.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 8444 OF 1998

IN THE MATTER OF ADEL ELFERKH
BETWEEN:	AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522) Applicant
AND:	ADEL ELFERKH (also known as EDDY ELFERKH, EDDIE ELFERKH and EDDYE ELFERKH) Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	22 JULY 1999
WHERE MADE:	SYDNEY

JUDGE:	EMMETT J
DATE:	22 JULY 1999
PLACE:	SYDNEY