Joan Freedom Rogers Pty Ltd v Prasad

FEDERAL COURT OF AUSTRALIA

Joan Freedom Rogers Pty Ltd v Prasad [2000] FCA 1049

BANKRUPTCY – creditor’s petition – whether undated petition a nullity – whether absence of date merely a formal defect or irregularity – scope of “other sufficient cause” why a sequestration order ought not to be made – whether futility of a sequestration order a sufficient cause – circumstances in which the Court can go behind the judgment of another court superior jurisdiction

Bankruptcy Act 1966 (Cth) ss 47(1A), 52, 306(1)
Federal Court Rules O 77 r 16(1)

ANZ Banking Group Ltd v Elferkh [1999] FCA 1049, considered
Eterovic v Pavlovic (Federal Court, Heerey J, 26 June 1996, unreported), distinguished
Re Betts, ex parte Betts [1897] 1 QB 50, cited
Radich v Bank of New Zealand (1993) 116 ALR 676, cited
In re Field (a debtor) [1977] 3 WLR 937, cited
Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71, cited
Wren v Mahony (1972) 126 CLR 212, followed

JOAN FREEDOM ROGERS PTY LIMITED v NARENDRA PRASAD
N 7184 of 2000

BRANSON J
SYDNEY
4 AUGUST 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7184 of 2000

BETWEEN:	JOAN FREEDOM ROGERS PTY LIMITED (ACN 074-686-838) APPLICANT
AND:	NARENDRA PRASAD RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	4 AUGUST 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        A sequestration order be made against the estate of Narendra Prasad.

2.        [Costs].

THE COURT NOTES THAT:

3.        The date of the act of bankruptcy is 29 December 1999.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7184 of 2000

BETWEEN:	JOAN FREEDOM ROGERS PTY LIMITED (ACN 074-686-838) APPLICANT
AND:	NARENDRA PRASAD RESPONDENT

JUDGE:	BRANSON J
DATE:	4 AUGUST 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The respondent appeared at the hearing of the creditor’s petition to oppose the making of a sequestration order against his estate.

2. Section 52 of the Bankruptcy Act 1966 (Cth) (“the Act”) relevantly provides as follows:

   “(1)     At the hearing of a creditor’s petition, the Court shall require proof of:

   (a)the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);

   (b)service of the petition; and

   (c)the fact that the debt or debts on which the petitioning creditor relies is or are still owing;

   and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.

   (1A)     ….

   (2)If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:

   (a)that he or she is able to pay his or her debts; or

   (b)that for other sufficient cause a sequestration order ought not to be made;

   it may dismiss the petition.”

   THE PETITION AND BANKRUPTCY NOTICE

3. The petition is…