Della Bruna v Glowsoar Pty Ltd

[2006] FMCA 1815

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DELLA BRUNA v GLOWSOAR PTY LTD [2006] FMCA 1815

BANKRUPTCY – Annulment – whether sequestration order should not have been made – whether bankrupt was personally served with creditor’s petition – whether creditor validly proved debt – whether court should exercise its discretion not to annul notwithstanding a finding of no service – whether proposals for compromise should be accepted.

Bankruptcy Act 1966, ss.5, 52, 73, 153B

Heinrich v Commonwealth Bank of Australia [2003] FCA 539
Re Frank; Ex parte Piliszky (1987) 77 ALR 511
Rafaraci v Pearce & Heers [2003] FCA 1307
Udowenko v Rasevi Pty Limited  [2006] FCA 1217
Ahern v Deputy Commissioner of Taxation (1987) 76 ALR 137
Needlework Warehouse Pty Ltd (ACN 101 863 709) v Chansonette Pty Ltd (ACN 092 507 938) and Anor [2005] FCA 1525

Applicant: ALBINA DELLA BRUNA

Respondent: GLOWSOAR PTY LIMITED
ACN 054 924 533

File Number: SYG2584 of 2006

Judgment of: Raphael FM

Hearing date: 15 November 2006

Date of Last Submission: 1 December 2006

Delivered at: Sydney

Delivered on: 8 December 2006

REPRESENTATION

Counsel for the Applicant: Mr T Rickard

Solicitors for the Applicant: Simmons & McCartney

Counsel for the Respondent: Mr S Docker

Solicitors for the Respondent: Kemp Strang

ORDERS

1. Application dismissed.

2. Respondent’s costs to be paid out of the estate of the bankrupt.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2584 of 2006

ALBINA DELLA BRUNA

Applicant

And

GLOWSOAR PTY LIMITED (ACN 054 924 533)

Respondent

REASONS FOR JUDGMENT

1. On 15 November 2006 I heard an application for the annulment of a bankruptcy which had come into effect by way of a sequestration order made on 31 August 2006. The application was brought pursuant to s.153B of the Bankruptcy Act 1966 (the “Act”) which is in the following form:

   “Annulment by Court

   (1)  If the Court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor’s petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver, the Courthttp:// - the_court may make an order annulling the bankruptcy..

   (2)  In the case of a debtor’s petition, the order may be made whether or not the bankrupt was insolvent when the petition was presented.”

2. The bankrupt, Dr Albina Della Bruna submitted that there were two grounds upon which the court should find that the sequestration order ought not to have been made. The first was that she was not served personally with the creditor’s petition and supporting documents prior to 31 August 2006 as required by s.52(1)((b) of the Act. The second ground was that the court should not have been satisfied by the proof placed before it by the petitioning creditor that the debt was still owing as required by s.52(1)(c). I heard the evidence of the parties on
   15 November 2006 and made orders that the parties provide me with written submissions.  Both parties have complied with those orders and I…