Nair v NAIDU

[2013] FCCA 251

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAIR v NAIDU [2013] FCCA 251

Catchwords:
BANKRUPTCY – Sequestration order unintentionally made twice in relation to the same individual – latter sequestration order annulled.

Legislation:  
Bankruptcy Act 1966, ss.153B, 109

Applicant: ALAN GEOFFREY SCOTT AS TRUSTEE OF THE BANKRUPT ESTATE OF SAROJINI NAIR

Respondent: SAROJINI NAIDU

File Number: ADG 107 of 2013

Judgment of: Judge Simpson

Hearing date: 24 April 2013

Date of Last Submission: 24 April 2013

Delivered at: Adelaide

Delivered on: 24 April 2013 (ex temp)

REPRESENTATION

Counsel for the Trustee: Mr Ryder

Solicitors for the Trustee O’ Loughlins Lawyers

The Respondent: No appearance

ORDERS

1. That the Sequestration Order entered against the Respondent (Administration No. NSW 1034/13/9) in Federal Magistrates Court of Australia Action No. (P)SYG 2877/2012 be annulled pursuant to section 153B(1) of the Bankruptcy Act 1966.

2. That the Trustee of the Bankrupt Estate of the Respondent (Administration No. NSW 1034/13/9), Mr Paul Andrew Leroy, have his costs of, and incidental to, his appointment as Trustee of the Bankrupt Estate of Respondent, made payable out of the Bankrupt Estate of Sarojini Nair (Administration No. SA 166/13/1), as a priority payment pursuant to section 109(1)(a) of the Bankruptcy Act 1966.

3. That the Trustee of the Bankrupt Estate of Sarojini Nair (Administration No SA 166/13/1), Mr Alan Geoffrey Scott, have his costs of, and incidental to, the within Application made payable out of the Bankrupt Estate of Sarojini Nair (Administration No SA 166/13/1), as a priority payment pursuant to section 109(1)(a) of the Bankruptcy Act 1966.

4. That Federal Magistrates Court of Australia Action No. (P)SYG 2877/2012 be dismissed.

5. All extant applications are dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 107 of 2013

ALAN GEOFFREY SCOTT AS TRUSTEE OF THE BANKRUPT ESTATE OF SAROJINI NAIR

Applicant

And

SAROJINI NAIDU

Respondent

REASONS FOR JUDGMENT

(Ex Tempore Reasons)

1. I have before me an application brought by the Trustee of the Bankrupt Estate of Sarojini Nair to annul a bankruptcy that was entered in New South Wales proceedings in the Federal Magistrates Court (as it then was), in Action No. (P)SYG2877/2012, which sequestration order was made on or about 25 February 2013.  That sequestration order was made in relation to a person identified as Sarojini Naidu. As it transpires, an earlier order had already been made in relation to that individual but using her married name, Sarojini Nair.  So we have the unusual situation where there are two sequestration orders that have been made in relation to the same individual with a slightly different spelling of a surname.

2. The first of the sequestration orders was made in Adelaide on 11 February 2013. 

3. Clearly the order in the Sydney Registry should not have been made. Section 153B of the Bankruptcy Act allows the Court to annul a bankruptcy in certain circumstances. Section 153B of the Bankruptcy Act says in part:

   “(1)If the Court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor’s petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver, the Court may make an order annulling the bankruptcy”.

4. Clearly in this case the sequestration order should not have been made and would not have been made if the parties, the Trustee and the Court had realised that a sequestration order had recently been made against that individual. I have no hesitation in making the orders as sought by the applicant in these proceedings.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Date: 9 May 2013