Oberlechner v Commonwealth Securities Ltd

[2003] FMCA 511

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OBERLECHNER v COMMONWEALTH SECURITIES LTD [2003] FMCA 511

BANKRUPTCY – Annulment – whether bankrupt was served personally with the creditor’s petition – whether the bankrupt is solvent – whether the bankrupt has cooperated with his trustee or made a proposal to pay the trustee’s expenses.

Bankruptcy Act 1966 (Cth), s.153B

Re Kosovich; ex parte Norvill

Applicant: FRED OBERLECHNER

Respondent: COMMONWEALTH SECURITIES LTD

File No: SZ1825 of 2003

Delivered on: 11 November 2003

Delivered at: Sydney

Hearing date: 11 November 2003

Judgment of: Driver FM

REPRESENTATION

Solicitors for the Applicant: Mr H Weller

Solicitors for the Respondent: Mr J Teasdale
O’Brien Teasdale Lawyers

Solicitor for the Trustee: Mr J Brown
Matthews Folbigg Pty Ltd

ORDERS

1. The application is dismissed with costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1825 of 2003

FRED OBERLECHNER

Applicant

And

COMMONWEALTH SECURITIES LTD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. I have before me an application for the annulment of bankruptcy under section 153B of the Bankruptcy Act 1966 (Cth) (“the Bankrputcy Act”). A sequestration order was made on 21 August 2003. The applicant relies on his own affidavits filed on 5 September 2003 and 31 October 2003, an affidavit by his wife, Grace Oberlechner, also filed on 31 October 2003 and an affidavit by his solicitor, Herbert Weller, also filed on 31 October 2003.

2. The application is opposed by the petitioning creditor and by the trustee in bankruptcy.  They rely upon two affidavits by a process server, Gregory Hughes, both filed in court on 11 November 2003, although made on 15 August 2003 and 11 November 2003; also two affidavits by Schon Gregory Condon, one filed on 21 October 2003 and the other filed on 11 November 2003.  I have also received an affidavit by Jonathan Teasdale, solicitor for the petitioning creditor, which is also relied upon.

3. The main issue of fact in the matter is whether the applicant was served with the creditor’s petition.  The evidence of the process server, Gregory Hughes, is that the applicant was served on 12 August 2003 at 11.15am.  The process server's evidence is both detailed and specific and includes a diary note.  Mr Oberlechner's affidavit evidence on this question was very general indeed but he expanded upon it significantly in oral evidence which I permitted him to give in court today.  He was able to verify parts of his oral evidence by documentary evidence, including his passport and an airline ticket.  There is a direct conflict of evidence between Mr Oberlechner and Mr Hughes.

4. Parts of Mr Oberlechner's evidence were also corroborated by his wife who also gave oral evidence to augment her affidavit.  Based upon that evidence, I accept that Mr Oberlechner travelled overseas between 12 August 2003 and 29 August 2003.  He had intended to leave Australia on 11 August 2003 but did not leave until the following day because there was a problem with his Italian passport which had expired and had to be renewed.  That occurred on 11…