Ozer v Australian Liquor Marketers Pty Ltd

[2001] FCA 1197

FEDERAL COURT OF AUSTRALIA

Ozer v Australian Liquor Marketers Pty Ltd [2001] FCA 1197

BANKRUPTCY – annulment – discretionary refusal to annul – conduct of bankrupt – primary judge’s exercise of discretion not miscarried – appeal dismissed.

Bankruptcy Act 1966 (Cth) s 153B

Nazile Ozer v Australian Liquor Marketers Pty Ltd and Another
N 159 of 2001

HEEREY, EMMETT and ALLSOP JJ

SYDNEY

29 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 159 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

NAZILE OZER
APPELLANT

AND:

AUSTRALIAN LIQUOR MARKETERS PTY LIMITED
FIRST RESPONDENT

SCOTT PASCOE
SECOND RESPONDENT

JUDGES:

HEEREY, EMMETT & ALLSOP JJ

DATE OF ORDER:

29 AUGUST 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed; and

2.the appellant pay the respondents’ costs.

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	N 159 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

NAZILE OZER
APPELLANT

AND:

AUSTRALIAN LIQUOR MARKETERS PTY LIMITED
FIRST RESPONDENT

SCOTT PASCOE
SECOND RESPONDENT

JUDGES:	HEEREY, EMMETT & ALLSOP JJ
DATE:	29 AUGUST 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. This appeal is concerned with an application by the appellant, Nazile Ozer (Ms Ozer), for the annulment of her bankruptcy pursuant to s 153B of the Bankruptcy Act 1966 (Cth) (the Act). A judge of the Court has, on two occasions, declined to annul the bankruptcy. Ms Ozer now appeals to the Full Court for the second time against the second refusal of the primary judge to annul her bankruptcy.

2. On 26 October 1998 the first respondent, Australian Liquor Marketers Pty Limited (the Petitioner) served on Ms Ozer a creditor’s petition under the Act.  The act of bankruptcy on which the Petitioner relied was Ms Ozer’s non-compliance, by 6 August 1998, with a bankruptcy notice that had been served on Ms Ozer on 16 July 1998.

3. The judgment relied on in the bankruptcy notice was a judgment in the sum of $10,734.80, which had been obtained by the Petitioner against Ms Ozer in the Local Court of New South Wales on 26 February 1998.  Ms Ozer was served with the originating process in the Local Court on or about 22 August 1997.  The Petitioner’s claim in the Local Court was under a written guarantee allegedly given to the Petitioner by Ms Ozer on 3 January 1997.  The guarantee was in respect of the payment for goods supplied by the Petitioner to Possam Holdings Pty Ltd, a company of which Ms Ozer was then a director.

4. Before 12 April 1999 the petition came before the Court on at least four occasions after its service on Ms Ozer on 26 October 1998.  On 12 April 1999, the Court made a sequestration order in respect of the estate of Ms Ozer.  Notwithstanding that she had notice in…