Plant v Ken Smith Electronics P/L & Others

IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

Registry:

Sydney

Applicant

Wayne Douglas Plant

Respondent 1:

Ken Smith Electronics Pty Limited

Respondent 2:

Alan Richard Nicholls as the Trustee of the Property of Wayne Douglas Plant, a Bankrupt

File No:

SZ25/2000

Hearing Dates:

26 October 2000

Date of Decision:

30 October 2000

Before:

Kenneth Raphael FM

Primary Legislation:

Bankruptcy Act 1966 (Cth) (s.153B)
Industrial Relations Act 1996 (NSW) (s.41, s.182)

Application:

BANKRUPTCY – Annulment of bankruptcy – Bankruptcy notice -Failure of certificate to comply with s.182 of the Industrial Relations Act 1996 (NSW) – Notice misleading -Discretion

Matter for Decision:

Principal Matter

REPRESENTION

Applicant:

Mr Brian Skinner of Counsel instructed by Bowles Lawyers

First Respondent:

Ms Patricia McDonald of Counsel instructed by Lazarus Smith Solicitors

Second Respondent:

Ms Michelle Painter of Counsel instructed by Jones King Lawyers

ORDERS:

1.    Application dismissed

2.    Applicant to pay the 1^st and 2^nd Respondent’s costs

IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
SYDNEY REGISTRY
No SZ25/2000

BETWEEN:

WAYNE DOUGLAS PLANT
Applicant

and

KEN SMITH ELECTRONICS PTY LIMITED
First Respondent

ALAN RICHARD NICHOLLS AS THE TRUSTEE OF THE PROPERTY OF WAYNE DOUGLAS PLANT, A BANKRUPT
Second Respondent

REASONS FOR JUDGMENT

1. On 30 May 2000 Wayne Douglas Plant who had had a sequestration order made against him on 26 October 1998 applied to the Federal Court of Australia for annulment of that order pursuant to s.153B of the Bankruptcy Act 1966 (Cth). That section states:

“153B  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 … the court may make an order annulling the bankruptcy.”

2.    The matter was transferred to this Court by order of Madgwick J on 30 August 2000. 

3.    It is now well accepted that in order for an applicant to succeed in an application under this section the applicant must establish both that the sequestration order ought not to have been made and that it is proper for the court to exercise its discretion to annul the order.  (See comments of Katz J in Ozer v Australian Liquor Marketers Pty Limited & Pascoe, unreported FCA 5 October 1999 para 17, Delph Sing v Wood (1918) 25 CLR 497, Marek v Tregenza (1963) 109 CLR 1).

4.    The events which led up to the making of the sequestration order in this matter are not in dispute.  The bankrupt was one of a number of parties against whom proceedings had been commenced in the Industrial Commission of NSW and against whom judgment was given by Marks J on 5 November 1997.  The total amount of the judgment was $142,765.  The bankrupt was not represented in those proceedings although he had taken some legal advice prior thereto.  A number of companies with which he was associated were also parties to those proceedings and he represented them himself as their advocate.  In the time between the…