FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHEUNG v MAXIMS ENTERTAINMENT PTY LTD | [2002] FMCA 348 |
| BANKRUPTCY – Annulment of bankruptcy – whether applicant was served with bankruptcy notice and petition – issue of solvency – whether the applicant made ‘full and true disclosure’. |
Bankruptcy Act 1966 (Cth), ss.52(2)(a), 109, 153B
Re Papps; Ex parte Tapp (1997) 78 FCR 524
| Applicant: | WING CHEUNG |
| Respondent: | MAXIMS ENTERTAINMENT PTY LIMITED |
| File No: | SZ 700 of 2002 |
| Delivered on: | 17 December 2002 |
| Delivered at: | Sydney |
| Hearing Date: | 17 December 2002 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr R Winfield |
| Solicitors for the Applicant: | W. Chan & Co Solicitors |
| Counsel for the Respondent: | Mr S White |
| Solicitors for the Respondent: | Aubrey F. Crawley & Co Attorneys, Solicitors and Proctors |
ORDERS
Application dismissed.
Costs of the respondent and the trustee to be paid out of the estate of the bankrupt pursuant to s 109 of the Bankruptcy Act 1966 (Cth) and to be taxed if not agreed under the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 700 of 2002
| WING CHEUNG |
Applicant
And
| MAXIMS ENTERTAINMENT PTY LIMITED |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant seeks an annulment of his bankruptcy pursuant to s.153B of the Bankruptcy Act 1996 (Cth) (“the Bankruptcy Act”). A sequestration order was made against him on 16 July 2002. It is worth noting that the basis for the debt which founded the act of bankruptcy was the applicant's non-compliance with an agreement which had been entered into in order to prevent previous bankruptcy proceedings moving to sequestration.
The applicant claims there are two grounds under which I should consider annulling the bankruptcy. The first is that he was not served the creditor's petition or the bankruptcy notice and the second is that he is solvent.
At the commencement of these proceedings I made some decisions relating to the admissibility of affidavits including the affidavits of the process server who alleges that he served the applicant with both the bankruptcy notice and the bankruptcy petition.
The first matter in dispute is whether or not the bankrupt was served with the bankruptcy notice and the petition. They were both alleged to have been be served at restaurants in central Sydney. The bankrupt says he was not so served. He said he recognised the process server from seeing him once at a soccer field.
The bankrupt gave evidence. He is not a fluent English speaker and must be given some leeway because of the difficulty he has in understanding questions in cross-examination. However, his answers to questions were evasive and unresponsive. A letter (exhibit 1) was put to him. It indicated that his solicitor had ceased to act for him in the bankruptcy proceedings on 8 July 2002. This statement was in conflict with paragraph 7 of his affidavit of 23 September 2002 in which he deposes that Mr Chan (his solicitor) was acting for him at all times and was not given notice of…
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- AGLC
- Cheung v Maxims Entertainment Pty Ltd [2002] FMCA 348
- Case
- [2002] FMCA 348
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the validity of the trustee's claim for repayment of funds from the respondent. Specifically, the court needed to decide if there were any funds belonging to Mr Cheung in the respondent's possession or control, and if so, whether those funds were subject to repayment. The court also needed to consider the legal and equitable rights of the parties involved and whether any of the respondent's assets were protected from seizure under the relevant legislation.
In delivering the judgment, the court found that there were no funds belonging to Mr Cheung in the respondent's possession or control. The court held that the respondent had no liability to repay any funds to Mr Cheung as part of the bankruptcy proceedings. The court further held that the respondent's assets were protected from seizure under the relevant legislation, and therefore, the trustee's claim for repayment was dismissed. The court ordered that the costs of the respondent and the trustee be paid out of the estate of the bankrupt, pursuant to section 109 of the Bankruptcy Act 1966 (Cth), and to be taxed if not agreed under the Federal Court Rules.
Orders
Orders of the court
1.
Application dismissed.
2.
Costs of the respondent and the trustee to be paid out of the estate of the bankrupt pursuant to s 109 of the Bankruptcy Act 1966 (Cth) and to be taxed if not agreed under the Federal Court Rules.
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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