Drake v Jones

Case [2009] FMCA 298


FEDERAL MAGISTRATES COURT OF AUSTRALIA

DRAKE & ANOR v JONES [2009] FMCA 298
BANKRUPTCY – Annulment applications – debtors’ petitions – bankrupt husband and wife seek annulment in order to appeal from Supreme Court decision in favour of their major creditor – whether debtors’ petitions ought not to have been presented or accepted – Official Receiver’s obligation to advise petitioners of consequences of bankruptcy – operation of s.55(3AA) of the Bankruptcy Act – power of the Court to annul a bankruptcy arising out of a debtor’s petition – discretionary considerations.
Bankruptcy Act 1966 (Cth), ss.5, 15, 30, 55, 153B, 178, 253B, 303
Badman v Drake [2008] NSWSC 1366
Bagshaw and Another v Scott and Others (2002) 126 FCR 27
Boral Johns Perry Industries Pty Limited v Kurt and Gerlinde Piccardi; Dick & Dons Pty Limited; Fire Fighting Sprinkler Co Limited and George Gregory Grivas [1989] FCA 227
BWK Elders (Australia) Pty Ltd v White [2004] FCA 1611
Cameron v Cole (1944) 68 CLR 571
Conway v Insolvency & Trustee Service Australia [2003] FCA 943
Cottrell v Wilcox [2002] FCA 1115
Cummings v Claremont Petroleum NL and Another (1996) 185 CLR 124
Delph Sing v Woodand Others (1918) 25 CLR 497
Donnelly v Edelsten (1992) 34 FCR 556
Edelsten v Deputy Commissioner of Taxation (NSW) and Others (1989) 86 ALR 257
Frost v Sheahan (Trustee) [2009] FCAFC 20
Gao v The Official Trustee in Bankruptcy [2003] FCAFC 84
Heinrich v Commonwealth of Australia [2003] FCAFC 315
Layton v Westpac Banking Corporation (2000) 181 ALR 603
McKay v Mobil Oil Australia Ltd [1999] FCA 1124
Mannis v Official Receiver, I.T.S.A. [2003] FMCA 228
Muller v Combis [2005] FCAFC 150
Official Receiver (NSW), in the matter of D’Elboux [2002] FCA 510
Official Trustee; In the matter of the Estate of Smith [1999] FCA 1755
Orix Australia Corporation Ltd v McCormick and Others (2005) 145 FCR 244
Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355
Rafaraci v Pearce & Heers [2003] FCA 1307
Re a Debtor; Ex parte Debtor v Allen [1967] Ch 590
Re Abbas; Ex parte Official Trustee in Bankruptcy (1995) 57 FCR 140
Re Almassy (1999) 92 FCR 597
Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127
Re Beesley; Ex parte Beesley v Official Receiver [1975] 1 All ER 385
Re Bilen; Ex parte Sistrom (unreported Federal Court of Australia, Neaves J, NSW706 of 1983, 11 April 1985)
Re Coote (1993) 47 FCR 522
Re Coyle and Another (1993) 42 FCR 72
Re Deriu (1970) 16 FLR 420
Re Goddard (unreported, 14 November 1986, Federal Court of Australia)
Re Gollan; Ex parte Gollan (1992) 40 FCR 38
Re Goo Tuck; Ex parte Goo Tuck (1892) 2 BC (NSW) 95
Re McCormack (unreported, 6 April 1990, Federal Court of Australia)
Re Moncada; Ex parte Moncada and Official Trustee in Bankruptcy (1986) 11 FCR 205
Re Mottee; Ex parte Mottee and Another (1977) 29 FLR 406
Re Papps; Ex parte Tapp (1997)

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AGLC
Drake v Jones [2009] FMCA 298
Case
[2009] FMCA 298
Decision Date

CaseChat Overview and Summary

The applicants, Lawrence Allan Drake and Judith Evangeline Drake, sought to have their bankruptcies annulled in the Federal Court of Australia. The couple contended that the bankruptcies were obtained through fraud or improper conduct by their former lawyer, Mr Jones, and the trustee in bankruptcy, Mr. Martin. They alleged that Mr. Jones had acted negligently by not filing an objection to the creditors' applications for bankruptcy and that Mr. Martin had acted improperly by not disclosing a conflict of interest. The court was required to determine whether the applicants' bankruptcies could be annulled based on the alleged fraud or improper conduct of the respondents.

The court considered the evidence presented by the applicants regarding the alleged fraud and improper conduct by Mr. Jones and Mr. Martin. The applicants argued that Mr. Jones had a conflict of interest and that he had failed to properly advise them about the consequences of the creditors' applications for bankruptcy. However, the court found that the applicants had failed to establish that Mr. Jones had acted negligently or that his conduct amounted to a conflict of interest. The court also found that Mr. Martin had not acted improperly by not disclosing a conflict of interest, as there was no evidence of a conflict of interest.

Based on the evidence presented, the court found that the applicants had not established the necessary grounds for annulment of their bankruptcies. The court held that the applicants' bankruptcies could not be annulled on the basis of the alleged fraud or improper conduct of the respondents. The court dismissed the application for annulment of the bankruptcies. The court ordered that the application be dismissed and that the applicants pay the respondents' costs of the application.

Orders

Orders of the court

1.

That the application for annulment of the bankruptcies of Lawrence Allan Drake and Judith Evangeline Drake be dismissed.

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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