FEDERAL COURT OF AUSTRALIA
Goodman v Westpac Banking Corporation [2011] FCA 777
Citation: Goodman v Westpac Banking Corporation [2011] FCA 777 Appeal from: Westpac Banking Corporation v Goodman [2010] FMCA 993 Parties: MORRIS GOODMAN v WESTPAC BANKING CORPORATION File number: VID 51 of 2011 Judge: NORTH J Date of judgment: 1 July 2011 Date of hearing: 1 July 2011 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 32 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: Mr C Nichol Solicitor for the Respondent: Gadens Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 51 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MORRIS GOODMAN
AppellantAND: WESTPAC BANKING CORPORATION
Respondent
JUDGE:
NORTH J
DATE OF ORDER:
1 JULY 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondent’s costs of the appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 51 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MORRIS GOODMAN
AppellantAND: WESTPAC BANKING CORPORATION
Respondent
JUDGE:
NORTH J
DATE:
1 JULY 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Before the Court is an appeal by Morris Goodman, the appellant, against orders made by Turner FM on 17 December 2010. The federal magistrate made a sequestration order against the estate of Mr Goodman on the application of the respondent, Westpac Banking Corporation (the Bank).
The statutory provisions applicable to this appeal are ss 52(1) and (2) of the Bankruptcy Act 1966 (Cth) (the Act), which relevantly provide:
(1) At the hearing of a creditor's petition, the Court shall require proof of:
(a)the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);
(b) service of the petition; and
(c)the fact that the debt or debts on which the petitioning creditor relies is or are still owing;
and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.
…
(2)If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:
(a) that he or she is able to pay his or her debts; or
(b)that for other sufficient cause a sequestration order ought not to be made;
it may dismiss the petition.
Section 40(1)(g) of the Act relevantly provides:
(1)A debtor commits an act of bankruptcy in each of the following cases:
…
(g)if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under…
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- Case
- [2011] FCA 777
- Decision Date
CaseChat Overview and Summary
The federal magistrate rejected Mr Goodman's argument that the Bank's petition was brought for an ulterior motive or that the Bank lacked bona fides. The magistrate found that the Bank's interest in Mr Goodman being made bankrupt to stifle litigation was not sufficient to refuse the sequestration order. The magistrate concluded that there was no evidence to support Mr Goodman's allegations of improper motive, and thus the petition could proceed. The court found that Mr Goodman had failed to satisfy the conditions necessary to avoid bankruptcy under the Act, and therefore the petition was valid.
ORDERS:
1. The appeal is dismissed.
2. The appellant pay the respondent’s costs of the appeal.
Orders
Orders of the court
1. The appeal is dismissed.
2. The appellant pay the respondent’s costs of the appeal.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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