Bourke v Westpac Banking Corporation

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 36.08
Cases 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 1032
Date 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 Appellant
AND:	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 Appellant
AND:	WESTPAC BANKING CORPORATION Respondent

JUDGE:	BUCHANAN J
DATE:	11 JANUARY 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. 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.

2. 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…