FOREMAN v Vince

[2006] FMCA 128

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FOREMAN v VINCE [2006] FMCA 128

BANKRUPTCY – Application for annulment of bankruptcy affected by own petition –consideration of whether sequestration order ought not to have been made on the basis that at time petition presented debtor was solvent – notice to creditors – onus on applicant to satisfy court that creditor aware of proceedings – discretion to annul bankruptcy based on all the circumstances of the case – application dismissed.

Bankruptcy Act 1966 (Cth), s.153B
Federal Magistrates Court Rules 2001, regs.35.01, 35.02, 35.03, 35.04, 6.06, 6.07

Re: Kathleen Wong (Debtor) Ex Parte: Kathleen Wong (Applicant/Debtor) Patricia May Elizabeth Robins trading as P.M.E. Robinson and Co (Respondent/Creditor) No. NB515 of 1995 Fed No. 805/95 Bankruptcy

Applicant: SHIRLEY FOREMAN

Respondent: PETER ROBERT VINCE

File Number: MLG1491 OF 2005

Judgment of: Connolly FM

Hearing date: 30 January 2006

Date of Last Submission: 30 January 2006

Delivered at: Melbourne

Delivered on: 3 February 2006

REPRESENTATION

Counsel for the Applicant: Self-represented

Solicitors for the Applicant: N/A

Counsel for the Respondent: Mr Andrew White

Solicitors for the Respondent: Serry White & Co.

ORDERS

1. That the application dated 17 January 2006 be dismissed.

2. That the applicant pay the Trustee’s cost, such costs to be agreed, failing agreement to be taxed in accordance with the Bankruptcy Act 1996 (Cth)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG1491 of 2005

SHIRLEY FOREMAN

Applicant

And

PETER ROBERT VINCE

Respondent

REASONS FOR JUDGMENT

The proceedings

1. Pursuant to the applicant’s amended application filed 17 January 2006 the applicant seeks orders:

   a)That the applicant’s bankruptcy No. VB2777 of 1999 be amended pursuant to s.153B of the Bankruptcy Act 1966 on the ground that the debtor’s petition ought not to have been presented because at the time the applicant was solvent and has been solvent at all times since.

   b)That the Trustee’s report be dispensed with on the basis that correspondence in relation to the amended application has been provided by the Trustee.

2. The application is supported by the following:

   i)The applicant’s affidavit sworn 23 November 2005 and filed 24 November 2005.

   ii)The applicant’s affidavit sworn on 16 January 2006 and filed 17 January 2006 (the affidavit with respect to service of documents on creditors).

   iii)The applicant’s affidavit sworn 16 January 2006 and sworn 17 January 2006.

   iv)The applicant’s affidavit sworn 19 January 2006 and filed 19 January 2006.

3. The Trustee Peter Robert Vince filed the following:

   i)The affidavit of Peter Robert Vince sworn 18 January 2006 and filed 20 January 2006. This affidavit annexes a report prepared by the Trustee.

   ii)Submissions of the Trustee respondent.

The law

1. Section 153B of the Bankruptcy Act 1966 is as follows:

   “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 Court may make an order annulling the bankruptcy.

   (2) In…