Kellow v Dudzinski

[2003] FCA 103

FEDERAL COURT OF AUSTRALIA

Kellow v Dudzinski [2003] FCA 103

BANKRUPTCY – application for sequestration order – whether creditors’ petition can be signed by a solicitor on behalf of the creditors – whether bankruptcy notice founded on more than one judgment – whether court should go behind judgment where challenge to validity of bankruptcy notice dismissed and appeal from the decision unsuccessful – whether grounds of opposition relevant to question of “other sufficient cause” – whether made out

Bankruptcy Act 1966 (Cth) ss 40, 41, 43, 44, 52, 308
Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth)
Federal Court Rules O 62 r 40, O 62 r 46, O 77 Subrule 16(1)

Neil v Nott (1994) 121 ALR 148 followed
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 mentioned
James v Federal Commissioner of Taxation (1955) 93 CLR 631 mentioned
Cain v Whyte (1933) 48 CLR 639 referred to
Ling v Enrobook Pty Ltd 74 FCR 19 referred to
Re Schmidt ex parte Anglewood Pty Ltd (1968) 13 FLR 111 cited
Re James ex parte Carter Holt Harvey Roofing (Aust) Pty Ltd(No 2) (1994) 51 FCR 14 cited
Australia and New Zealand Banking Group Limited v Hubner (1999) FCA 1346 referred to

AYNSLEY KELLOW and OTHERS v WALDEMAR DUDZINSKI

No Q 7022 of 2002

SPENDER J
BRISBANE
20 FEBRUARY 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 7022  OF 2002

BETWEEN:

AYNSLEY KELLOW
FIRST APPLICANT

ROY RICKSON
SECOND APPLICANT

ERROL STOCK
THIRD APPLICANT

BILL HOGARTH
FOURTH APPLICANT

CORDIA CHU
FIFTH APPLICANT

KEES HULSMAN
SIXTH APPLICANT

LYN HOLMAN
SEVENTH APPLICANT

COLIN McANDREW
EIGHTH APPLICANT

JOHN SCOTT
NINTH APPLICANT

GRIFFITH UNIVERSITY
TENTH APPLICANT

AND:

WALDEMAR DUDZINSKI
RESPONDENT

JUDGE:

SPENDER J

DATE OF ORDER:

20 FEBRUARY 2003

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.A sequestration order be made against the estate of Waldemar Dudzinski. 

2.The costs of and incidental to the petition be paid in accordance with the Bankruptcy Act 1966 Cth).

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 7022  OF 2002

BETWEEN:

AYNSLEY KELLOW
FIRST APPLICANT

ROY RICKSON
SECOND APPLICANT

ERROL STOCK
THIRD APPLICANT

BILL HOGARTH
FOURTH APPLICANT

CORDIA CHU
FIFTH APPLICANT

KEES HULSMAN
SIXTH APPLICANT

LYN HOLMAN
SEVENTH APPLICANT

COLIN McANDREW
EIGHTH APPLICANT

JOHN SCOTT
NINTH APPLICANT

GRIFFITH UNIVERSITY
TENTH APPLICANT

AND:

WALDEMAR DUDZINSKI
RESPONDENT

JUDGE:	SPENDER J
DATE:	20 FEBRUARY 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is a contested creditors petition. Section 43 of the Bankruptcy Act 1966 (Cth) (“the Act”) provides:

   “(1)     Subject to this Act, where:

   (a)a debtor has committed an act of bankruptcy; and

   (b)at the time when the act of bankruptcy was committed, the debtor:

   (i)was personally present, or ordinarily resident in Australia;

   (ii)had a dwelling-house or place of business in Australia;

   (iii)was carrying on business in Australia, either personally or by means of an agent or manager; or