Hrycenko v Hrycenko in his capacity as personal representative of the estate of Hrycenko (deceased), in the matter of Hrycenko

This proceeding concerned an application to review a Registrar's decision regarding a bankruptcy notice. The applicant, Victor Hrycenko, sought to set aside a bankruptcy notice issued by the respondent, the personal representative of the estate of his late father, George Hrycenko. The dispute arose from a judgment debt of $3,088,093.25 obtained by George Hrycenko against Victor Hrycenko in the Supreme Court of Victoria, stemming from allegations of unconscionable conduct, undue influence, and breach of fiduciary duty concerning Victor's management of his father's financial affairs as attorney. The matter was heard de novo by McNab J in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the bankruptcy notice constituted an abuse of process. The applicant initially raised four grounds for setting aside the notice, including solvency, intention to appeal, abuse of process, and defectiveness. However, at the hearing, the applicant narrowed their reliance to the sole ground of abuse of process, arguing that the service of the bankruptcy notice while appeal proceedings were ongoing, coupled with the applicant's alleged solvency, amounted to such an abuse.

McNab J considered the definition of solvency under section 5(2) of the Bankruptcy Act 1966 (Cth), which requires a person to be able to pay all their debts as and when they become due and payable. The onus of proving solvency rested with the applicant, who needed to demonstrate not only that assets exceeded liabilities but also the ability to procure funds through realisation or mortgage of assets within a relatively short time. While solvency itself is not a ground to set aside a bankruptcy notice, it could be relevant to the abuse of process argument. The Court found that the applicant's contention of solvency, based on equity in properties, was insufficient to discharge the onus of proof. Consequently, the ground of abuse of process, as argued by the applicant, failed.

The Court concluded that the applicant had not established that the bankruptcy notice constituted an abuse of process. Accordingly, the application for review was dismissed, and the applicant was ordered to pay the respondent's costs.