Australian Competition and Consumer Commission v Kritharas

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Kritharas,
in the matter of Kritharas [2000] FCA 1442

BANKRUPTCY – provable debt – whether creditor’s petition presented while composition remained valid “in respect of a provable debt” within par 238(2)(a) of Bankruptcy Act – claims for compensation made by ACCC on behalf of other persons against debtor alleged to have been involved in contraventions of ss 52 and 59 of Trade Practices Act – whether such claims “demands in the nature of unliquidated damages arising otherwise than by reason of a contract” within subs 82(2) of Bankruptcy Act.

Bankruptcy Act 1966 (Cth) ss 40(1)(g), 58(3), 82, 187(2), 188, 204, 238(2)(a), 238(2)(c)
Trade Practices Act 1974 (Cth) ss 52(1), 59, 82, 87

Fielding v Vagrand Pty Limited (In liquidation) (1992) 39 FCR 251 discussed
Vagrand Pty Limited (In liquidation) v Fielding (1993) 41 FCR 550 referred to
CCA Systems Pty Ltd v Communications & Peripherals (Australia) Pty Ltd (1989) 15 ACLR 720 discussed
Re Dawson; Ex parte Dawson and Arthur Andersen and Co (1985) 5 FCR 133 referred to
Re NIAA Corporation Ltd (In liquidation) (NSWSC: McLelland CJ in Eq, 2 December 1994, unreported) discussed
Reid v Interarch Australia Pty Limited (ACN 069 490 795) [2000] FCA 1328 followed
Official Trustee in Bankruptcy v CS & GJ Handby Pty Ltd (1989) 21 FCR 19 discussed
Aliferis v Kyriacou [2000] VSCA 123 referred to

Barrett, “Claims excluded from proof in bankruptcy” (2000) 74 ALJ 659

AUSTRALIAN COMPETITION & CONSUMER COMMISSION
v NICHOLAS KRITHARAS (In the matter of Nicholas Kritharas)

N 8442 of 1999

KATZ J
18 OCTOBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 8442 of 1999

IN THE MATTER OF NICHOLAS KRITHARAS

BETWEEN:	AUSTRALIAN COMPETITION & CONSUMER COMMISSION APPLICANT
AND:	NICHOLAS KRITHARAS RESPONDENT
JUDGE:	KATZ J
DATE OF ORDER:	18 OCTOBER 2000
WHERE MADE:	SYDNEY

THE COURT DIRECTS THAT:

1.The matter be referred to a Registrar’s list at 9:15 am on 31 October 2000.

2.A Registrar, on proof of the formal matters required, may exercise the Court’s power under subs 52(1) of the Act to make a sequestration order against the debtor’s estate.

THE COURT ORDERS THAT:

3.The debtor pay the creditor’s costs of the proceeding to the present time, those costs to be taxed and paid in accordance with the Act on the making of a sequestration order against the debtor’s estate.

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	N 8442 of 1999

IN THE MATTER OF NICHOLAS KRITHARAS

BETWEEN:	AUSTRALIAN COMPETITION & CONSUMER COMMISSION APPLICANT
AND:	NICHOLAS KRITHARAS RESPONDENT

JUDGE:	KATZ J
DATE:	18 OCTOBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. There is before the Court a petition presented by the Australian Competition and Consumer Commission (“the ACCC”) for the making of a sequestration order against the estate of Mr Nicholas Kritharas (“the debtor”).  The act of bankruptcy relied on…