Blanco v Employers' MUTUAL INDEMNITY Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BLANCO v EMPLOYERS’ MUTUAL INDEMNITY LTD & ANOR [2002] FMCA 38

BANKRUPTCY – Review of registrar’s decision to make a sequestration order – defective bankruptcy notice – omission of reference to the Federal Court.

PRACTICE AND PROCEDURE – Whether the Court has a discretion not to set aside a sequestration order that should not have been made.

Acts Interpretation Act 1901 (Cth), s.48(2)
Bankruptcy Act 1966 (Cth), s.306
Federal Magistrates Act 1999 (Cth), s.104(2)

Atkinson v Oakleigh Holdings Pty Ltd [2000] FCA 1547
Australian Steel Company v Lewis [2000] FCA 1915
Barber v Bone Thorpe International Pty Ltd [2001] FMCA 4
BBC Hardware Ltd v Boutros (unreported, Federal Court of Australia, 6 March 1998, per Emmett J)
Bendigo Bank v Williams (2000) 98 FCR 377
Boorowa Shire Council v Booth [2001] FMCA 31
Farrugia v Farrugia (2000) 99 FCR 16
Kelly v deputy Commissioner of Taxation [2001] FCA 844
Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71
Lee v McNulty [2000] FCA 1519
Martin & Anor v Commonwealth Bank of Australia [2001] FCA 87
Shephard v Blueberry Farms of Australia (Corindi) Limited [2000] FMCA 2

Applicant:

TRACEY BLANCO

Trading as HEAVEN SENT BEAUTY CLINIC

First Respondent:

EMPLOYERS’ MUTUAL INDEMNITY (WORKERS’ COMPENSATION) LIMITED (ACN 003 201 885)

Second Respondent:

S D PASCOE

as trustee of the property of Tracey Blanco

File No: SZ785 of 2001

Delivered on: 7 March 2002

Delivered at: Sydney

Hearing Date: 7 March 2002

Judgment of: Driver FM

REPRESENTATION

Solicitors for the Applicant:	Mr D Bowles Bowles Lawyers
Solicitors for the First Respondent:	Mr D McCrostie P W Turk & Associates
Solicitors for the Second Respondent:	Mr P Haylen Haylen McKenzie, Solicitors

ORDERS

1. The sequestration order made on 7 February 2002 is set aside.

2. The creditor’s petition is dismissed.

3. No order as to costs between the creditor and debtor.

4. The applicant debtor is to pay the fees and expenses incurred by the trustee to date, which are declared to be the sum of $9,000, to be paid within 42 days.

5. The applicant is to inform the Official Receiver in Sydney of these orders within two days of entry.

Note:Settlement and entry of these orders may be effected pursuant to the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ785 of 2001

TRACEY BLANCO
trading as HEAVEN SENT BEAUTY CLINIC

Applicant

And

EMPLOYERS’ MUTUAL INDEMNITY

(WORKERS’ COMPENSATION) LIMITED

First Respondent

S D PASCOE

as trustee of the property of Tracey Blanco

Second Respondent

REASONS FOR JUDGMENT

1. I have before me for determination a notice of motion filed in this Court on 13 February 2002 by the applicant Tracey Blanco, seeking orders that a sequestration order made against her on 7 February 2002 be set aside, that the creditor’s petition leading to the sequestration order be dismissed and costs. The notice of motion has been accepted as an application under s.104(2) of the Federal Magistrates Act 1999 (Cth) for review of the decision of the registrar who made the sequestration…