FEDERAL COURT OF AUSTRALIA
Bourke v Westpac Banking Corporation [2012] FCA 6
Citation: Bourke v Westpac Banking Corporation [2012] FCA 6 Appeal from: Westpac Banking Corporation v Bourke [2011] FMCA 1032 Parties: MICHAEL VINCENT BOURKE v WESTPAC BANKING CORPORATION File number: NSD 21 of 2012 Judge: BUCHANAN J Date of judgment: 11 January 2012 Catchwords: BANKRUPTCY – interlocutory application for a stay of a sequestration order pending determination of appeal Legislation: Bankruptcy Act 1966 (Cth) ss 37(2), 52(3)
Federal Court Rules 2011 r 36.08Cases cited: Coleman v Lazy Days Investments Pty Ltd (1994) 55 FCR 297
Evans v Heather Thiedeke Group Pty Ltd (1990) 95 ALR 424
Liprini v Liprini (No 2) [2011] FCA 1150
de Robillard v Carver (2007) 159 FCR 38
Westpac Banking Corporation v Bourke [2011] FMCA 1032Date of hearing: 11 January 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 12 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondent: Mr R Adams of Henry Davis York
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 21 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MICHAEL VINCENT BOURKE
AppellantAND: WESTPAC BANKING CORPORATION
Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
11 JANUARY 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The interlocutory application filed on 10 January 2012, for a stay of the sequestration order made on 21 December 2011 pending hearing and determination of an appeal against that order, is dismissed with costs.
2.Costs are to be met from Mr Bourke’s bankrupt estate.
THE COURT DIRECTS THAT:
3. The appeal is to proceed in accordance with the Federal Court Rules.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 21 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MICHAEL VINCENT BOURKE
AppellantAND: WESTPAC BANKING CORPORATION
Respondent
JUDGE:
BUCHANAN J
DATE:
11 JANUARY 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 21 December 2011, on the petition of Westpac Banking Corporation, an order was made by the Federal Magistrates Court of Australia (“the FMCA”) for the sequestration of the estate of Michael Vincent Bourke (see Westpac Banking Corporation v Bourke [2011] FMCA 1032). The creditor’s petition upon which the sequestration order was made resulted from an unsatisfied bankruptcy notice which was, in turn, based upon a default judgment in the Supreme Court of New South Wales in the sum of $7,226,948.05. The Supreme Court judgment was entered by default on 31 August 2010. The judgment of the Supreme Court was based on guarantees given, inter alia, by Mr Bourke and his wife.
The proceedings which led to judgment were commenced by summons in the Supreme Court on 11 May 2010. The proceedings were not defended. Mr Bourke says, in an affidavit filed in support of his applications in this Court, that he first…
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- Case
- [2012] FCA 6
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the court should grant an interlocutory stay of the sequestration order pending the determination of an appeal against that order. The court had to consider the balance of convenience and the merits of the appeal in making its decision. The court also had to consider the relevant case law and the applicable rules of court.
The court held that the applicant had not satisfied the criteria for granting an interlocutory stay. The court found that the applicant had not demonstrated a strong possibility of success on the appeal and that the balance of convenience did not favour staying the sequestration order. The court also noted that the applicant had not provided sufficient evidence to support his claims. The court dismissed the application with costs, which were to be met from Mr Bourke’s bankrupt estate. The court directed that the appeal was to proceed in accordance with the Federal Court Rules.
Orders
Orders of the court
1. The interlocutory application filed on 10 January 2012, for a stay of the sequestration order made on 21 December 2011 pending hearing and determination of an appeal against that order, is dismissed with costs.
2. Costs are to be met from Mr Bourke’s bankrupt estate.
THE COURT DIRECTS THAT:
3. The appeal is to proceed in accordance with the Federal Court Rules.
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
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Ratio Decidendi
Legal Principle Established
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