GE Commercial Australasia Pty Ltd v Tinkler, in the matter of Nathan Tinkler

In the matter of Nathan Tinkler, GE Commercial Australasia Pty Ltd sought a sequestration order against the debtor, who contested the application on various grounds. The primary issue before the court was whether the bankruptcy notice complied with the requirements under the Bankruptcy Regulations 1966 (Cth), specifically regarding the rate of exchange stated in the notice. The debtor contended that the rate provided in the bankruptcy notice was not the “telegraphic rate of exchange prevailing” on the relevant date, as required by regulation 4.04. The court needed to determine if the rate stated in the notice was indeed the rate that prevailed for telegraphic transfers on the second day before the application for the notice was lodged.

The court examined the evidence provided by the creditor's solicitor, Mr Clark, who testified that he used the foreign exchange rate published by Westpac on 15 June 2015 for his calculations. The court found that Mr Clark's methodology for determining the rate was consistent with the requirements under the regulation. The court accepted that the rate provided in the notice was the inverse of the rate available for telegraphic transfers on the relevant date and that the creditor had complied with regulation 4.04. Consequently, the court concluded that the bankruptcy notice was valid and that the creditor's petition met the statutory requirements for a sequestration order.

The court dismissed the debtor's arguments regarding solvency and the accuracy of the amount stated in the creditor's petition. It held that the petition did not need to state the precise amount of the debt as at the date of the petition, as long as the basic requirements of the statute were satisfied. The court found that the creditor had provided sufficient evidence to support the application for a sequestration order and granted the order, staying all proceedings for 21 days and awarding costs to the applicant.