Commonwealth Bank of Australia v Jeans, in the matter of Jeans (No 2)

FEDERAL COURT OF AUSTRALIA
Commonwealth Bank of Australia v Jeans, in the matter of Jeans (No 2)
[2006] FCA 919
IN THE MATTER OF JOHN ANTHONY JEANS
COMMONWEALTH BANK OF AUSTRALIA v JOHN ANTHONY JEANS
NSD 1079 OF 2004
RARES J
5 JULY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1079 OF 2004

BETWEEN:

COMMONWEALTH BANK OF AUSTRALIA
(ACN 123 123 124)
APPLICANT CREDITOR

AND:

JOHN ANTHONY JEANS
RESPONDENT DEBTOR

JUDGE:

RARES J

DATE OF ORDER:

5 JULY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

(1) A sequestration order be made against the estate of John Anthony Jeans;
(2)The applicant creditors' costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).

The court notes that the date of the act of bankruptcy is 21 January 2004.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1079 OF 2004

BETWEEN:

COMMONWEALTH BANK OF AUSTRALIA
(ACN 123 123 124)
APPLICANT CREDITOR

AND:

JOHN ANTHONY JEANS
RESPONDENT DEBTOR

JUDGE:

RARES J

DATE:

5 JULY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

This is the final hearing of a bankruptcy petition filed on 9 July 2004. The act of bankruptcy occurred by failure to comply with a bankruptcy notice on 21 January 2004. I am satisfied that all of the formal matters required to be proved to establish the creditors' entitlement to the making of a sequestration order pursuant to s 52 of the Bankruptcy Act1966 (Cth) have been established on the evidence that has been tendered before me this morning, including the oral evidence correcting a mistake in the affidavit of final debt made by Mr Ralston yesterday when he erroneously referred to the source of the debt in the petition as being the Supreme Court of New South Wales rather than a judgment of this court. Having regard to those matters I am satisfied that I should make a sequestration order as sought.
The orders I make are:
(1) A sequestration order be made against the estate of John Anthony Jeans;
(2)The applicant creditors' costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
The court notes that the date of the act of bankruptcy is 21 January 2004. A consent to act as trustee has been signed by Mark Julian Robinson of PPB, level 15, 25 Bligh Street, Sydney.

I certify that the preceding three (3) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.
Associate:
Dated: 19 July 2006

Counsel for the Applicant: Mr AG Bell SC

Solicitor for the Applicant: JK O’Sullivan Solicitors

Counsel for the Respondent: Mr JM Ireland QC

Solicitor for the Respondent: RH Butler

Date of Hearing: 5 July 2006

Date of Judgment: 5 July 2006

CaseChat Overview and Summary

The matter before the court was an application by the Commonwealth Bank of Australia to have a sequestration order made against the debtor, John Anthony Jeans, pursuant to the Bankruptcy Act 1966 (Cth). The Commonwealth Bank had previously been granted a judgment against the debtor in the Federal Court, and this judgment remained unsatisfied. The debtor's financial position had deteriorated, leading to the application for sequestration.

The legal issues before the court were whether an act of bankruptcy had indeed occurred and whether, if so, the applicant had satisfied the criteria necessary for the court to make a sequestration order. The act of bankruptcy in question was the debtor's failure to comply with the Federal Court judgment. The court needed to consider whether this constituted a valid act of bankruptcy under the Bankruptcy Act. Additionally, the court had to determine whether the applicant had met all the requisite conditions for the sequestration order, including proving the existence of the unsatisfied judgment.

The court found that the Commonwealth Bank had met its burden of proving the unsatisfied judgment, and that the debtor had failed to comply with the judgment, which constituted an act of bankruptcy. The court then turned to the criteria for making a sequestration order, considering the debtor's financial position, the prospects of rehabilitation, and the interests of creditors. The court concluded that the debtor was indeed insolvent and that the making of a sequestration order was in the best interests of the creditors. The court ordered that a sequestration order be made against the debtor and that the applicant's costs be paid from the debtor's estate.

Orders of the court

(1) A sequestration order be made against the estate of John Anthony Jeans;

(2) The applicant creditors' costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).

The court notes that the date of the act of bankruptcy is 21 January 2004.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1079 OF 2004

BETWEEN:	COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) APPLICANT CREDITOR
AND:	JOHN ANTHONY JEANS RESPONDENT DEBTOR
JUDGE:	RARES J
DATE OF ORDER:	5 JULY 2006
WHERE MADE:	SYDNEY

JUDGE:	RARES J
DATE:	5 JULY 2006
PLACE:	SYDNEY

Counsel for the Applicant:	Mr AG Bell SC
Solicitor for the Applicant:	JK O’Sullivan Solicitors
Counsel for the Respondent:	Mr JM Ireland QC
Solicitor for the Respondent:	RH Butler
Date of Hearing:	5 July 2006
Date of Judgment:	5 July 2006