FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BIRON CAPITAL LIMITED v ANSTEE | [2005] FMCA 1100 |
| BANKRUPTCY – Creditor’s petition – petition opposed on the basis that the creditor holds security of greater value than the debt – creditor giving the security a nil value – that value a genuine one – petition granted. |
| Bankruptcy Act 1966 (Cth), s.44 Bankruptcy Regulations Corporations Act 2001 (Cth) |
| Re Button; ex parte Voss (1905) 1 KB 602 Re O’Leary; ex parte Bayne (1985) 61 ALR 674 Re Scott; ex parte Moore [1892] 2 BCNSW 55 |
| Applicant: | BIRON CAPITAL LIMITED |
| Respondent: | BARRY FRANCIS ANSTEE |
| File Number: | SYG876 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 28 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Cohen |
| Solicitors for the Applicant: | Gadens Lawyers |
The respondent appeared in person
ORDERS
A sequestration order be made against the estate of Barry Francis Anstee.
The applicant creditor’s costs, including reserved costs if any, be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).
The Court notes that a copy of these orders is to be given to the Official Receiver in Sydney within two days after the orders are entered.
The Court notes that the date of the act of bankruptcy is 22 February 2005.
The Court notes that consent to act as trustee has been signed by Maxwell William Prentice and has been lodged with the Official Receiver in Sydney.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG876 of 2005
| BIRON CAPITAL LIMITED |
Applicant
And
| BARRY FRANCIS ANSTEE |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a creditor’s petition filed on 10 June 2005 seeking a sequestration order against the estate of Barry Francis Anstee. The petition is supported by the following material: an affidavit by John Corr filed on 11 April 2005, a supplementary affidavit by Mr Corr filed by leave in court today, an affidavit of Michael McEwen also filed on 11 April 2005 with a supplementary affidavit by Mr McEwen filed in court by leave on 26 July 2005, affidavits of service of the bankruptcy notice and petition by Peter Miltenyi filed on 11 April 2005 and by leave in court on 26 July 2005, an affidavit by Jeremy David Shervington filed in court by leave on 26 July 2005 as to the continuing existence of the debt, an affidavit by Mark David Groben filed in court by leave on 26 July 2005, an affidavit by Martin David Hirst filed in court by leave on 26 July 2005 and an affidavit by Bryan Collis also filed in court by leave on 26 July 2005.
The petition is opposed by the debtor, Mr Anstee. He relies upon an amended notice of intention to oppose the petition filed in court by leave on 26 July 2005 with an affidavit in support filed in court by leave on the same day. Mr Anstee also relies upon five bundles of documents tendered during the course of argument today…
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- Case
- [2005] FMCA 1100
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the defendant's financial obligations met the criteria for a sequestration order. The legal issues involved verifying the debt's existence, the defendant's ability to pay, and whether the defendant had committed an act of bankruptcy. The court also had to consider whether the applicant had followed the proper procedures in applying for the sequestration order.
The court found that the defendant had indeed committed acts of bankruptcy by failing to pay debts, and his financial situation justified the declaration of bankruptcy. The court ruled in favour of the applicant and ordered the sequestration of the defendant's estate. The court also ordered that the applicant's costs be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth). The court noted that a copy of these orders was to be given to the Official Receiver in Sydney within two days of the orders being entered. The court also noted that the date of the act of bankruptcy was 22 February 2005 and that consent to act as trustee had been signed by Maxwell William Prentice and lodged with the Official Receiver in Sydney.
Orders
Orders of the court
1.
A sequestration order be made against the estate of Barry Francis Anstee.
2.
The applicant creditor’s costs, including reserved costs if any, be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).
3.
The Court notes that a copy of these orders is to be given to the Official Receiver in Sydney within two days after the orders are entered.
4.
The Court notes that the date of the act of bankruptcy is 22 February 2005.
5.
The Court notes that consent to act as trustee has been signed by Maxwell William Prentice and has been lodged with the Official Receiver in Sydney.
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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