FEDERAL COURT OF AUSTRALIA
JML Rose Pty Ltd v Jorgensen (No 2) [2025] FCA 282
File number: QUD 529 of 2024 Judgment of: LOGAN J Date of judgment: 20 March 2025 Catchwords: BANKRUPTCY – where applicant applies for review of a sequestration order of a registrar made ex parte – whether court must conduct hearing de novo – whether s 52(1) of the Bankruptcy Act 1966 (Cth) is satisfied – whether court should look behind a default judgment which forms the basis of bankruptcy absent a bona fide allegation that no debt lies behind judgment – whether trustee has personal liability for debts incurred as trustee – application dismissed. Legislation: Acts Interpretation Act 1901 (Cth) s 36
Bankruptcy Act 1966 (Cth) ss 52, 156A
Cases cited: Dunkerley v Comcare [2019] FCA 1002
JML Rose Pty Ltd v Jorgensen [2024] FCA 1421
Katter v Melhem (No 2) [2014] FCA 1176
Martin v Commonwealth of Australia (2001) 217 ALR 634
Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360
Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132
Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 48 Date of hearing: 20 March 2025 Solicitor for the Applicant: JML Rose Counsel for the Respondent: The respondent appeared in person Solicitor for the Supporting Creditor: Grace Lawyers Solicitor for the Interested Person: Rose Litigation Lawyers ORDERS
QUD 529 of 2024 BETWEEN: JML ROSE
Applicant
AND: LEIGH ALAN JORGENSEN
Respondent
BODY CORPORATE FOR CAIRNS CENTRAL PLAZA APARTMENTS COMMUNITY TITLES SCHEME 40022
Supporting Creditor
LEON LEE, AS TRUSTEE OF THE BANKRUPT ESTATE OF LEIGH ALAN JORGENSEN (THE BANKRUPT)
Interested Person
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
20 MARCH 2025
THE COURT ORDERS THAT:
1.The application filed 11 November 2024 to review the sequestration order dated 16 October 2024 be dismissed.
2.The sequestration order of 16 October 2024 be affirmed, but noting the date of the act of bankruptcy is 31 August 2024, not 30 August 2024 as noted on that order.
3.The costs of the applicant of and incidental to the application to review the sequestration order be fixed in a lump sum by the Registrar and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.
4.The costs of the supporting creditor of and incidental to the application to review the sequestration order be fixed in a lump sum by the Registrar and paid from the estate of the respondent debtor, in accordance with the Bankruptcy Act 1966.
5.The costs of the trustee of and incidental to the application to review the sequestration order form part of the costs of administration of the estate of the bankrupt by the trustee.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
On 16 October 2024, a Registrar (Schmidt R) on the application of JML Rose, as applicant…
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- Case
- [2025] FCA 282
- Decision Date
CaseChat Overview and Summary
The court found that it was not obligated to conduct a de novo hearing in this context. The statutory requirements under section 52(1) of the Bankruptcy Act 1966 (Cth) were satisfied, as the default judgment formed a sufficient basis for the sequestration order. The court determined that it was not appropriate to look behind the default judgment unless there was a bona fide allegation that no debt lay behind the judgment, which was not the case here. Furthermore, the court clarified that the trustee did not have personal liability for the debts incurred as trustee. Consequently, the application to review the sequestration order was dismissed.
The court's decision affirmed the sequestration order, with a correction to the date of the act of bankruptcy. The costs associated with the application to review the sequestration order were to be borne by the respondent debtor's estate, with specific allocations for the applicant, the supporting creditor, and the trustee. The final orders were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The application filed 11 November 2024 to review the sequestration order dated 16 October 2024 be dismissed.
2. The sequestration order of 16 October 2024 be affirmed, but noting the date of the act of bankruptcy is 31 August 2024, not 30 August 2024 as noted on that order.
3. The costs of the applicant of and incidental to the application to review the sequestration order be fixed in a lump sum by the Registrar and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.
4. The costs of the supporting creditor of and incidental to the application to review the sequestration order be fixed in a lump sum by the Registrar and paid from the estate of the respondent debtor, in accordance with the Bankruptcy Act 1966.
5. The costs of the trustee of and incidental to the application to review the sequestration order form part of the costs of administration of the estate of the bankrupt by the trustee.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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