Mathai v Kwee

[2005] FCA 932

FEDERAL COURT OF AUSTRALIA

Mathai v Kwee [2005] FCA 932

BANKRUPTCY – Application for extension of time nunc pro tunc within which to apply for a review of a Registrar’s decision – Court’s discretion;
Application for annulment of sequestration order; whether debtor had a dwelling-house in Australia; whether debtor ordinarily resident in Australia; time for compliance with a 21 day Bankruptcy Notice expiring at Christmas time.

Acts Interpretation Act 1901 (Cth) s 36
Bankruptcy Act 1966 (Cth) s 33(1)(c), 40(1)(g), 41, 43, 153B, 154, 181A
Bankruptcy Regulations 1996 Reg 4.02(1) and Schedule 1 Form 1
Federal Court of Australia Act 1976 (Cth) s 35A
Federal Court Rules Order 77 Rules 7 and 8, Order 3 Rule 3
Foreign Judgments Act 1991 (Cth) s 6

Re Kwiatek and Kwiatek; Ex parte Big J Limited v Pattison (1989) 21 FCR 374 referred to
Harris v Caladine (1991) 172 CLR 84 referred to
Re R. E. Green (1947) 14 ABC 109 referred to
In re Brauch (A Debtor); Ex parte Britannic Securities & Investments Limited [1978] 1 Ch 316 referred to
In re Hecquard; Ex parte Hecquard (1889) 24 QBD 71 referred to
Re Boles [2000] FCA 1782 referred to
Re Vassis; Ex parte Leung (1986) 9 FCR 518 referred to
Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 cited
Re Ginnane; Ex parte Diner’s Club Limited (1992) FCA 627 referred to

MATHEW KERALAVAKAYIL MATHAI v LOW MOOI KWEE and ANOR

NSD 596 of 2005

GRAHAM J

19 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 596 OF 2005

BETWEEN:

MATHEW KERALAVAKAYIL MATHAI
APPLICANT

AND:

LOW MOOI KWEE
FIRST RESPONDENT

LOKE CHING WONG As Trustee of THE PROPERTY OF MATHEW KERALAVAKAYIL MATHAI, a Bankrupt
SECOND RESPONDENT

JUDGE:

GRAHAM J

DATE OF ORDER:

19 JULY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The Amended Application filed 26 May 2005 be dismissed.

2.        The Applicant pay the First Respondent’s costs of the Application filed 19 April 2005 and of the Amended Application filed 26 May 2005.

3.        The costs and expenses of the Second Respondent be costs and expenses in the administration of the bankrupt’s estate.

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	NSD 596 OF 2005

BETWEEN:

MATHEW KERALAVAKAYIL MATHAI
APPLICANT

AND:

LOW MOOI KWEE
FIRST RESPONDENT

LOKE CHING WONG As Trustee of THE PROPERTY OF MATHEW KERALAVAKAYIL MATHAI, a Bankrupt
SECOND RESPONDENT

JUDGE:	GRAHAM J
DATE:	19 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 18 May 2004 a sequestration order was made by Registrar Wood in the Victorian District Registry of the Court against the estate of Mathew Keralavakayil Mathai (“Mr Mathai”). This order was made under s 43 of the Bankruptcy Act 1966 (Cth) (“the Act”) which provides as follows:-

   “43(1) Subject to this Act, where:

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

   (b)