Layton v Westpac Banking Corp

[2000] FCA 1752

FEDERAL COURT OF AUSTRALIA

Layton v Westpac [2000] FCA 1752

BANKRUPTCY - Application to annul bankruptcy - whether the sequestration order ought to have been made - consideration of the extended time for compliance with a bankruptcy notice.

Bankruptcy Act 1966 (Cth) ss 41(6A), 153B

Streimer v Tamas (1981) 54 FLR 253 Foll
Re Udowenko;  Ex parte Mitchell (1995) 69 FCR 299 Appr
Re Williams (1968) 13 FLR 10 Foll
Stankiewicz v Plata [2000] FCA 1185 Foll

Re Coyle (1993) 42 FCR 72 Foll

Official Trustee:  In the matter of the Estate of Smith [1999] FCA 1755 Cited

Re Dennehy;  ex parte Dennehy [1895] NSWLR (Bank & Pro) 40 Foll

Re Finn;Ex parte Amoco Australia Ltd (1982) 41 ALR 487 Cited

Miller v Bondi Securities [1994] FCA 654 Cited

Field v Commonwealth Banking Company of Sydney Ltd (1978) 37 FLR 341 Cited

Prowse v McIntyre (1961) 111 CLR 264 Refd

GORDON LEITH LAYTON v WESTPAC BANKING CORPORATION
Q7138 OF 2000

COOPER J
BRISBANE
4 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q7138 OF 2000

IN THE MATTER OF:	GORDON LEITH LAYTON
BETWEEN:	GORDON LEITH LAYTON APPLICANT
AND:	WESTPAC BANKING CORPORATION RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	4 DECEMBER 2000
WHERE MADE:	BRISBANE

THE COURT DECLARES THAT:

The bankruptcy of Gordon Leith Layton commenced on 10 March 2000.

THE COURT ORDERS THAT:

1.Save for the declaration made, the application of the bankrupt filed 5 April 2000 be dismissed.

2.Gordon Leith Layton pay the costs of Westpac Banking Corporation, including its reserved costs, if any, of and incidental to the application to be taxed if not agreed.

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	Q7138 OF 2000

IN THE MATTER OF:	GORDON LEITH LAYTON
BETWEEN:	GORDON LEITH LAYTON APPLICANT
AND:	WESTPAC BANKING CORPORATION RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	4 DECEMBER 2000
WHERE MADE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant is a bankrupt. He was made bankrupt on 10 March 2000. He applies under s 153B of the Bankruptcy Act 1966 (Cth) (“the Act”) to have his bankruptcy annulled on the ground that the sequestration order ought not to have been made because there was at the time of the order no available act of bankruptcy.

2. The application is opposed by the petitioning creditor, Westpac Banking Corporation (“Westpac”).

3. On 16 January 2000 a bankruptcy notice (13/2000) was served on the bankrupt.  It was based on a Magistrates Court judgment of $30,467.64 given in favour of Westpac on 5 January 2000.  The period for compliance with the notice expired on 6 February 2000.  On 2 February 2000 the bankrupt applied in the Magistrates Court to set aside the judgment.

4. Westpac filed a creditor’s petition on 15 February 2000, relying on a failure of the bankrupt to comply with the requirements of the bankruptcy notice on or before 6 February 2000 as the relevant act of bankruptcy.  Prior to service…