Blue Cube Developments Pty Ltd v Von Risefer

Case [2022] FCA 1193

FEDERAL COURT OF AUSTRALIA

Blue Cube Developments Pty Ltd v Von Risefer [2022] FCA 1193

File number(s): VID 612 of 2021
Judgment of: MCELWAINE J
Date of judgment: 6 October 2022
Catchwords: BANKRUPTCY – sequestration order made by a registrar – application made by respondents for review of sequestration order by a judge – review hearing de novo –where no reason to go behind the judgment debt – no question of principle – turns on its own facts – sequestration order is affirmed
Legislation:

Acts Interpretation Act 1901 (Cth) s28A

Bankruptcy Act 1966 (Cth) ss 41, 43,44, 47, 52, 58(1), 306(1)

Bankruptcy Regulations 2021 (Cth) reg 9, 10(1), 10A, 102

Federal Court Act 1976 (Cth) s 35A(5)

Federal Court (Bankruptcy Rules) 2016 (Cth) rr .2.02, 4.02, 4.06   
Cases cited:

Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34

Bradburn v The Great Western Railway Company (1874) L.R. 10 Ex 1

Cristovao v Tan & Tan Lawyers Pty Ltd [2018] FCAFC 41

House v The King (1936) 55 CLR 499

Ling v Enrobook Pty Ltd (1997) 74 FCR 19

Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; [2017] VSC 61

Mulhern v Official Receiver [2015] FCA 807

Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132

Re Kostezky; Ex parte Milder Elfman Szmerling Kryer Pty (1996) 67 FCR 101

Von Risefer v Permanent Trustee Co Ltd [2003] HCATrans 354.
Division: General Division
Registry: Victoria
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 96
Date of hearing: 15, 21 September 2022
Counsel for the Applicant: Ms A Carruthers
Solicitor for the Applicant: LPF Legal
Counsel for the First Respondent: The First Respondent appeared in person
Counsel for the Second Respondent: The Second Respondent appeared in person

ORDERS

VID 612 of 2021
BETWEEN:

BLUE CUBE DEVELOPMENTS PTY LTD

Applicant
AND:

GEORGE VON RISEFER

First Respondent

ELIZABETH VON RISEFER

Second Respondent

ORDER MADE BY:

MCELWAINE J

DATE OF ORDER:

6 OCTOBER 2022

THE COURT ORDERS THAT:

1.The review application of Mrs Von Risefer and Mr Von Risefer dated 19 May 2022 and filed on 8 June 2022 is dismissed.

2.The sequestration order made by Registrar Edwards on 12 May 2022 is affirmed.

3.The petitioning creditor’s costs be taxed and paid from the sequestrated estates pursuant to the provisions of the Bankruptcy Act 1966 (Cth).

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

McElwaine J:

  1. Acting pursuant to delegated authority, Registrar Edwards of this Court on 12 May 2022 ordered that the estates of George Von Risefer and Elizabeth Von Risefer be sequestrated under the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act). On 8 June 2022 each of the bankrupts exercised their right of de novo review of those orders pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) by filing an interim application, albeit dated 19 May 2022, pursuant to rule 2.02…

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Details
AGLC
Blue Cube Developments Pty Ltd v Von Risefer [2022] FCA 1193
Case
[2022] FCA 1193
Decision Date

CaseChat Overview and Summary

In the matter of Blue Cube Developments Pty Ltd v Von Risefer, the Federal Court of Australia considered an application by the respondents for a review of a sequestration order made by a registrar. The respondents sought to have the sequestration order, which placed the respondents in bankruptcy, overturned. The case involved a dispute over the legitimacy and appropriateness of the sequestration order made by the registrar. The respondents argued that the order should not have been made, and they applied for a review of the decision by a judge.

The primary legal issue before the court was whether the sequestration order made by the registrar was appropriate and should be affirmed. The court had to determine whether there were any grounds for refusing the sequestration order, as per section 52(1) of the Bankruptcy Act 1966 (Cth). The court had to consider whether the registrar's decision to place the respondents in bankruptcy was justified and whether the order should be affirmed or set aside. The court also needed to decide whether the review application should be dismissed, and if so, whether the petitioning creditor's costs should be paid from the sequestrated estates.

The court found that there were no further matters that would justify a refusal of the sequestration order. The court was satisfied that the registrar's decision was appropriate and that the order should be affirmed. The court found that the review hearing was a de novo hearing and that the decision turned on its own facts. The court held that the review application was without merit and dismissed it. The sequestration order made by the registrar was affirmed, and the petitioning creditor's costs were ordered to be paid from the sequestrated estates. The court's decision was based on the fact that the review application did not raise any question of principle or challenge the validity of the judgment debt. The decision was affirmed, and the costs were ordered to follow the event.

Orders

Orders of the court

1. The review application of Mrs Von Risefer and Mr Von Risefer dated 19 May 2022 and filed on 8 June 2022 is dismissed.

2. The sequestration order made by Registrar Edwards on 12 May 2022 is affirmed.

3. The petitioning creditor’s costs be taxed and paid from the sequestrated estates pursuant to the provisions of the Bankruptcy Act 1966 (Cth).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The final matter to be considered is the discretion to make a sequestration order, notwithstanding the satisfaction of each of the above matters pursuant to s 52(1) of the Act. I am satisfied that there is no further matter which would justify a refusal of the making of the sequestration order is sought by the applicant.CONCLUSION For these reasons I dismiss the review application and I affirm the sequestration order made by Registrar Edwards on 12 May 2022. Costs must follow the event. Accordingly, I order as follows:(1)The review application of Mrs Von Risefer and Mr Von Risefer dated 19 May 2022 and filed on 8 June 2022 is dismissed;(2)The sequestration order made by Registrar Edwards on 12 May 2022 is affirmed;(3)The petitioning creditor’s costs be taxed and paid from the sequestrated estates pursuant to the provisions of the Bankruptcy Act 1966 (Cth).

Ratio Decidendi

Legal Principle Established

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