Hamilton-Smith v George (No 2)

[2006] FCA 1841

FEDERAL COURT OF AUSTRALIA

Hamilton-Smith v George (No 2) [2006] FCA 1841

TANYA HAMILTON-SMITH v HEIDI GEORGE
SAD 147 OF 2006

BESANKO J
29 NOVEMBER 2006
BRISBANE (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 147 OF 2006

BETWEEN:	TANYA HAMILTON-SMITH Applicant
AND:	HEIDI GEORGE Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	29 NOVEMBER 2006
WHERE MADE:	BRISBANE (HEARD IN ADELAIDE

THE COURT ORDERS THAT:

1.The following matters arising on the application for review of Registrar Christie’s orders made on 20 June 2006, on the creditor's petition presented on 26 September 2005 (‘the petition’) be remitted to Federal Magistrate Raphael for further hearing and determination as soon as practicable in accordance with the decision of this Court delivered 21 November 2006 (‘the decision’):

(a)the existence or otherwise of ‘other sufficient cause’ within s 52(2)(b) of the Bankruptcy Act 1966 (Cth) by reason of the alleged improper purpose of the petition as described in [70] to [86] of the decision, and if so,

(b)whether the petition should be dismissed by reason of the alleged improper purpose in the exercise of the Court’s discretion under s 52(2)(b) of the Bankruptcy Act 1966 (Cth).

2.There be no order as to the costs of the appeal.

3.The cost of the proceedings before Federal Magistrate Raphael be determined by him.

4.All proceedings under the sequestration order made by the Registrar on 20 June 2006 be stayed forthwith pending determination of the application for review by Federal Magistrate Raphael, on the appellant’s written undertaking, filed with the Court within 72 hours, that she will not dispose of any assets other than in the usual course of business as would otherwise be allowed under the Bankruptcy Act 1966 (Cth).

5.The order the Magistrate made as to costs (order number 2) on 19 July 2006 be set aside.

6.Liberty to apply.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 147 OF 2006

BETWEEN:	TANYA HAMILTON-SMITH Applicant
AND:	HEIDI GEORGE Respondent

JUDGE:	BESANKO J
DATE:	29 NOVEMBER 2006
PLACE:	BRISBANE (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

1. On 21 November 2006 I delivered reasons in this appeal: Hamilton-Smith v George [2006] FCA 1551. I also made orders that the appeal be allowed and that the sequestration order against the estate of Ms Tanya Hamilton-Smith made by the Federal Magistrates Court on 19 July 2006 be set aside. I said that I would hear the parties as to other appropriate orders and I did so on 24 November 2006 and again this morning. There were major differences between the parties as to what were the appropriate orders other than those which I have already made.

2. The first issue is whether I should set aside the sequestration order made by the Registrar on 20 June 2006. The appellant submits that I should, and advanced two reasons in support of that contention. First, she submits that…