Miller, D.E.E v Bondi Securities

[1994] FCA 654

DORIS EMILY ELIZABETH MILLER v BONDI SECURITIES AND THE OFFICIAL TRUSTEE IN
BANKRUPTCY
No. NB739 of 1993
FED No. 654/94
Number of pages - 23
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES
GENERAL DIVISION
BEAZLEY J

CATCHWORDS

Bankruptcy - application pursuant to s153B of the Bankruptcy Act 1966 to annul bankruptcy - whether sequestration order irregularly obtained - whether on annulment application court should look behind the judgment to determine whether a debt exists - in looking behind judgment court may be guided by similar principles to those which govern setting aside of judgments - effect of fraud or falsehood in affidavit of debt - whether order for substituted service of Bankruptcy Notice and Creditor's Petition was obtained by fraud - court's residual discretion whether to annul bankruptcy, even where ground made out - factors relevant to that discretion - whether applicant is solvent - delay in bringing the application.

Bankruptcy Act 1966

Re Frank; Ex parte Piliszky (1987) 16 FCR 396
Re Williams (1968) 13 FLR 10
Re Finn and Anor; Ex parte Amoco Australia Ltd and Official Receiver in Bankruptcy (1982) 41 ALR 487
M V Bourke and Anor v Beneficial Finance Corporation Limited (unreported Full Court of the Federal Court 8 December 1993)
Emerson v Wreckair Pty Ltd (1992) 33 FCR 581
Corney v Brien (1951) 84 CLR 343
Wren v Mahony (1972) 126 CLR 212
Owens Bank Limited v Bracco (1992) 2 AC 443
Monroe Schneider Associates (Inc) v No. 1 Raberem Pty. Limited (No. 2) (1992) 37 FCR 234
Trojan v Corporation of Hindmarsh (1987) 16 FCR 37

HEARING

SYDNEY, 7 March, 5, 6 and 16 May 1994
#DATE 2:9:1994

The applicant appeared in person.

Counsel for the Respondent: Mr J K Chippindall

Solicitors for the Respondent: Beilby Poulden Costello

ORDER

1. The application be dismissed.

2. The applicant pay the respondent's costs.

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

JUDGE1

BEAZLEY J This is an application brought pursuant to s153B of the Bankruptcy Act 1966 to annul the bankruptcy made on 23 March 1993 against the estate of Doris Emily Elizabeth Miller. Section 153B provides:

"If the Court is satisfied that a sequestration order ought not to have been made...the Court may make an order annulling the bankruptcy."

1. The application was based broadly on two grounds. First, the applicant alleges that the bankruptcy was irregularly obtained. Secondly, she alleges there is or was no debt owing to the petitioning creditor. For the reasons which appear below, I propose to dismiss the application.

Background
3. In early 1983, the applicant guaranteed two loans incurred by Kinconne Pty Ltd (Kinconne), a company of which the applicant was a shareholder and director, in respect of borrowings from Bondi Securities Pty Ltd (the petitioning creditor) for the purchase of both the realty and the business of the Avoca Nursing Home at 183 Avoca Street, Randwick. Kinconne is now…