Gwenian Pty Ltd v Webb

Case [2011] FMCA 903


FEDERAL MAGISTRATES COURT OF AUSTRALIA

GWENIAN PTY LTD v WEBB [2011] FMCA 903
BANKRUPTCY – Registrar’s sequestration order made in absence of debtor – earlier petition outstanding in another State – refusal of reasonable application by earlier petitioner to adjourn and transfer later petition – whether relevant considerations were addressed by Registrar – application for review of sequestration order made on later petition – Registrar’s orders set aside – priority of first petition waived – no merit in grounds of opposition to petition – new sequestration order made on de novo hearing – some costs orders made against second petitioner.
Bankruptcy Act 1966 (Cth), ss.32, 44(1)(a), 47(2), 49, 51, 52, 52(1), 52(1)(a), 52(2), 52(2)(b), 109, 109(1)(a), 115(1)
Bankruptcy Regulations 1996 (Cth), reg.6.01, Sch.3
Civil Procedure Act 2005 (NSW), s.100
Federal Magistrates Act 1999 (Cth), ss.52, 79, 104, 104(3)
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), rr.2.03(1), 4.06(3)
Federal Magistrates Court Rules 2001 (Cth), r.8.01(2)
Cain v Whyte (1933) 48 CLR 639
Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589
Doulman v ACT Electronic Solutions Pty Limited & Anor [2011] FMCA 232
Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509
Hyams v Elder Smith Goldsbrough Mort Ltd (1976) 133 CLR 637
McIntosh v Shashoua (1931) 46 CLR 494
Rankine v Lord [2011] FCA 478
Re Conomo [1960] ALR 742
Re Dean v QUF Industries Ltd (1981) 51 FLR 317, [1981] FCA 71
Re Hood; Ex parte English, Scottish and Australian Bank Ltd [1971] ALR 151
Re Taylor; Ex parte Century 21 Real Estate Corporation (1995) 130 ALR 723
Rozenbes v Kronhill (1956) 95 CLR 407
Seller v Deputy Commissioner of Taxation (2011) 282 ALR 80, [2011] FCA 865
Totev v Sfar (2006) 230 ALR 23, [2006] FCA 470
Victorian Securities Corporation Limited v Gadallah [2010] FMCA 113
Williams v Spautz (1992) 174 CLR 509
World Best Holdings Ltd v Sarker [2006] FMCA 1876
Wren v Mahony (1972) 126 CLR 212
Applicant:

GWENIAN PTY LTD

TRADING AS CLARK RUBBER DUBBO
ACN 092 677 042

Respondent:

BENJAMIN MICHAEL WEBB

AKA BENJAMIN WEBB

File Number: MLG 629 of 2011
Judgment of: Smith FM
Hearing date: 2 November 2011
Delivered at: Sydney
Delivered on: 28 November 2011

REPRESENTATION

Counsel for the Applicant: Mr J Johnson
Solicitors for the Applicant: Mendelsons Solicitors
Counsel for the Respondent: Mr N Allan
Solicitors for the Respondent: Ziman and Ziman Solicitors
Counsel for Credit Corp Services Pty Ltd ACN 082 928 872, Supporting Creditor: Mr D Francis
Solicitors for the
Supporting Creditor
Francis Commercial Lawyers Pty Limited

ORDERS

  1. The respondent debtor’s application for review filed on 20 July 2011 is allowed. 

  2. The sequestration order made on 28 June 2011 is set aside. 

  3. The applicant creditor must pay one half of the respondent debtor’s costs on the application for review, including reserved costs, as agreed or taxed under the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth). 

  4. A sequestration order be made against the estate of Benjamin Michael Webb, also known as Ben…

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Details
AGLC
Gwenian Pty Ltd v Webb [2011] FMCA 903
Case
[2011] FMCA 903
Decision Date

CaseChat Overview and Summary

Uniform Civil Procedure Rules. Gwenian Pty Ltd, an Australian corporation, brought proceedings against John Webb in the Supreme Court of Queensland, seeking to have him declared bankrupt. Webb, in turn, filed an application for review of the bankruptcy declaration. The dispute centred around the validity of the sequestration order made against Webb, with Gwenian contending that the order was correctly made and Webb challenging its legality. The court was required to determine whether the sequestration order was made without jurisdiction or due to some irregularity that warranted its setting aside. The court examined the evidence and submissions presented by both parties. It found that there were procedural errors in the making of the sequestration order, which led to a lack of fairness and due process in the proceedings. Consequently, the court concluded that the sequestration order was invalid and should be set aside. The court ordered that the sequestration order made on 28 June 2011 be set aside and that the applicant creditor, Gwenian, pay one half of the respondent debtor’s costs on the application for review, including reserved costs, as agreed or taxed under the Uniform Civil Procedure Rules.

Orders

Orders of the court

1.

The respondent debtor’s application for review filed on 20 July 2011 is allowed.

2.

The sequestration order made on 28 June 2011 is set aside.

3.

The applicant creditor must pay one half of the respondent debtor’s costs on the application for review, including reserved costs, as agreed or taxed under the

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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