Ozdil v Vrsecky (Trustee)

[2016] FCA 881

FEDERAL COURT OF AUSTRALIA

Ozdil v Vrsecky (Trustee) [2016] FCA 881

File number:

VID 301 of 2016

Judge:

JESSUP J

Date of judgment:

5 August 2016

Catchwords:

BANKRUPTCY – Annulment of bankruptcy under s 153B of the Bankruptcy Act 1966 (Cth) – Whether sequestration order “ought not to have been made” – bankrupt’s debt not effectively assigned.

Legislation:

Bankruptcy Act 1966 (Cth) ss 30, 40, 52, 153B

Property Law Act 1958 (Vic) s 134

Cases cited:

Re Vella; Ex parte Seymour (1983) 67 FLR 287

Stankiewicz v Plata [2000] FCA 1185

Date of hearing:

16 June 2016

Registry:

Victoria

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

19

Counsel for the Applicant:

The applicant appeared in person

Counsel for the First Respondent:

Mr B Devanny

Solicitor for the First Respondent:

Smith Leonard Fahey

Counsel for the Second Respondent:

Ms D McCredden

Solicitor for the Second Respondent:

White Cleland

ORDERS

VID 301 of 2016

BETWEEN:

BUKET OZDIL

Applicant

AND:

PETR VRSECKY AS TRUSTEE OF THE BANKRUPT ESTATE OF BUKET OZDIL

First Respondent

BAYCORP COLLECTIONS PDL (AUSTRALIA) PTY LTD (ACN 119 478 778)

Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	5 AUGUST 2016

THE COURT ORDERS THAT:

1.The applicant’s bankruptcy be annulled.

2.The application otherwise be dismissed.

3.Pending the receipt of submissions from the parties, costs be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JESSUP J

1. The estate of the applicant, Buket Ozdil, was sequestered by an order made by the Federal Circuit Court on 5 August 2014. In this proceeding, she seeks the annulment of her bankruptcy pursuant to s 153B of the Bankruptcy Act 1966 (Cth) (“the Act”). She also seeks the setting aside of the bankruptcy notice upon which the petition, which led to the making of the sequestration order, was based pursuant to s 30(1) of the Act.

2. The only evidence before the court is that contained in the applicant’s affidavit sworn on 11 April 2016, on which she was not cross-examined.  The recitation of the relevant facts set out below is based on that affidavit.

3. In the Statement of Claim endorsed on the Complaint in a proceeding against the applicant commenced in the Magistrates Court of Victoria (“the Magistrates Court”) on 8 July 2013, the second respondent, Baycorp Collections PDL (Australia) Pty Ltd (“Baycorp”) made allegations which included the following:

   ·the applicant entered into a credit line/credit card contract with Westpac Banking Corporation (“Westpac”), which provided that Westpac would extend credit to the applicant upon the basis that she pay interest at the rate published by Westpac from time to time, and make minimum monthly payments to Westpac;

   ·the published interest rate was 12.99%;

   ·the applicant failed or refused to make payments to Westpac, thereby becoming indebted to Westpac in the sum of $12,196.53;

   ·by deed dated 27 May 2008, Westpac assigned the contract and the debt to Baycorp;

   ·notice of…