FEDERAL COURT OF AUSTRALIA
JML Rose Pty Ltd v Jorgensen (No 3) [2025] FCA 976
File number: QUD 529 of 2024 Judgment of: WHEATLEY J Date of judgment: 19 August 2025 Catchwords: BANKRUPTCY AND INSOLVENCY – Annulment – Whether Court satisfied that sequestration order ought not to have been made – Where default judgment that founded the bankruptcy notice and the sequestration order set aside – Where debt to petitioning creditor was greater than the statutory minimum provided by the Bankruptcy Act 1966 (Cth) – Where supporting creditor was available to be substituted as the petitioning creditor – Whether discretion ought to be exercised to grant annulment – Where debtor failed to provide evidence of his financial position and solvency – Application dismissed.
PRACTICE AND PROCEDURE – Litigant in person – Use of Generative Artificial Intelligence (AI) – Hallucinated case references, legislation and Court rules – Irrelevant case and statute references – Where Generative AI used to prepare written and oral submissions – Submissions generated misconceived or irrelevant.
Legislation: Corporations Act 2001 (Cth) s 553C
Bankruptcy Act 1966 (Cth) ss 5, 49, 52, 54, 149, 153B, 154
Family Law Act 1975 (Cth)
Income Tax Assessment Act 1936 (Cth)
Federal Court (Bankruptcy) Rules 2016 (Cth) r 7.04
Federal Court Rules 2011 (Cth)
Bankruptcy Regulations 2021 (Cth) s 10A
Legal Profession Act 2007 (Qld) ss 308, 310, 316
Cases cited: Ayinde v The London Borough of Haringey [2025] EWHC 1383
Bayne v Baillieu (1907) 5 CLR 64; [1907] HCA 39
Boles v Official Trustee (2001) 183 ALR 239; [2007] FCA 639
De Robillard v Carver (2007) 159 FCR 38; [2007] FCAFC 73
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12
Francis v Eggleston Mitchell Lawyers Pty Ltd [2014] FCAFC 18
Geismayr v The Owners, Strata Plan KAS 1970 [2025] BCCRT 217
Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (2017) 52 WAR 90
Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (2018) 53 WAR 325
Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315
JML Rose Pty Ltd ACN 620 307 217 v Jorgensen and Jorgensen atf The Leigh Jorgensen Family Trust [2025], Magistrate Hay, 30 May 2025
JML Rose Pty Ltd v Jorgensen (No 2) [2025] FCA 282
JML Rose Pty Ltd v Jorgensen [2024] FCA 1421
Kaur v Royal Melbourne Institute of Technology [2024] VSCA 264
Ko v Li [2025] ONSC 2766
Lamb v Sherman (2023) 298 FCR 79; [2023] FCAFC 85
Lambshed v Lambshed (1963) 109 CLR 440; [1963] HCA 60
Luck v Secretary, Services Australia [2025] FCAFC 26
May v Costaras [2025] NSWCA 178
Nikolic v Nationwide News Pty Ltd (T/as The Australian) [2025] VSCA 112
Nilant v Macchia (2000) 104 FCR 238; [2000] FCA 1528
Official Receiver v Schultz (1990) 170 CLR 306; [1990] HCA 45
Official Trustee in Bankruptcy v Mateo (2003) 127 FCR 217; [2003] FCAFC 26
Re Deiru (1970) 16 FLR…
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- Case
- [2025] FCA 976
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
1. The First Respondent’s application for annulment filed 16 July 2025 be dismissed.
2. The costs of the Applicant, to the application to annul be paid from the estate of the First Respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
3. The costs of the Second Respondent (the Trustee), to the application to annul be paid from the estate of the First Respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In this regard also see Yang at [29(d)], to a similar effect.CONSIDERATION(1) Ought the sequestration order not to have been made? There was no dispute between the parties that the Default Judgment had been set aside on 30 May 2025. The dispute concerned the effect of the Default Judgment being set aside. Mr Jorgensen contends that now, as the Default Judgment has been set aside and as this was the sole basis for the bankruptcy notice and sequestration order, it is clear that the sequestration order was made in error and is “void ab initio”. It was also submitted by Mr Jorgensen that the setting aside of the Default Judgment extinguished the petitioning creditor’s debt. Further, Mr Jorgensen contended that upon the setting aside of the Default Judgment, the act of bankruptcy underpinning the creditor’s petition “ceased to exist ab initio”. Mr Jorgensen cited Re Macks; Ex parte Saint (2000) 204 CLR 158; [2000] HCA 62 for this proposition. Re Macks was not a case concerning a creditor’s petition, an act of bankruptcy or the setting aside of a default judgment, such that it considered the proper characterisation of such matters. Re Macks was considering legislation passed by certain States following Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27, regarding cross-vesting. Mr Jorgensen also referred to and relied on Re Macks at [50]-[51] and submitted that “the High Court [in re Macks]…confirmed that the discretion under section 153B of the Bankruptcy Act is not at large and must be exercised to annul where the factual basis for a sequestration order has disappeared.” I do not accept this submission. There is no reference to s 153B of the Act in Re Macks at [50]-[51] or at all. In the circumstances of this case, it is not correct to describe the making of the sequestration order as being one made as a result of an error. At the time the sequestration order was made on 16 October 2024 and effectively confirmed in the de novo hearing in the 2025 Judgment, the Default Judgment was still valid and effective. On this basis, I do not accept Mr Jorgensen’s submissions to the contrary. The subsequent setting aside of the Default Judgment on 30 May 2025 does not operate to automatically dissolve, set aside or annul the bankruptcy in and of itself. Furthermore, the setting aside of the Default Judgment does not operate such that the sequestration order is “void ab initio” or that the act of bankruptcy is “void ab initio”. It is necessary for Mr Jorgensen (as he has done) to make an application under s 153B of the Act. The effect of any annulment, if that were ordered, is set out in s 154 of the Act. The two elements required to be considered on an application under s 153B of the Act are set out above. Of importance is that any annulment is discretionary. As the above settled principles clearly articulate, even if the Court was bound not to make the sequestration order, as an exercise of discretion the bankruptcy may not be annulled. The Act by s 153B requires an application for annulment to be made and requires the Court to be satisfied as an exercise of discretion to annul the bankruptcy. The Act does not provide that upon the setting aside of a judgment debt which founded a bankruptcy notice and the subsequent sequestration order, the bankruptcy is automatically annulled or expunged.