Re Becker, M.W. - [1992] FCA 342

Re: MICHAEL WILLIAM BECKER
Ex Parte: NATHAN FINANCE LIMITED
No. Q P755 of 1992
FED No. 342
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND
Drummond J.(1)

CATCHWORDS

Bankruptcy - application by petitioning creditor for sequestration order - debtor an undischarged New Zealand bankrupt - relevant considerations in court exercising discretion against applicant - general discussion of court's jurisdiction to act in aid of a foreign bankruptcy court.

Bankruptcy Act 1966 (Cth) - ss. 29, 30, 52 and 131

Insolvency Act 1967 (N.Z.) - ss. 42, 53 and 69

In re Artola Hermanos; Ex parte Andre Chale (1890) 24 QB 640

Cain v Whyte (1933) 48 CLR 639

In re Robinson; Ex parte Robinson (1883) 22 QB 816

HEARING

BRISBANE

#DATE 29:5:1992

Solicitors for the applicant: Walsh Halligan Douglas

as town agents for Macdonnells (Cairns)

Counsel for the respondent: D.A. Mullins

Solicitors for the respondent: Phillips Fox

ORDER

THE COURT ORDERS THAT:

1. The petitioning creditor's application for a sequestration order is dismissed.

Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

JUDGE1

The applicant, Nathan Finance Limited, seeks a sequestration order against the respondent, Michael William Becker. The petition is based upon Becker's non-compliance with a bankruptcy notice demanding payment of the sum of AUD85,064.56.

Since at least the date of service on him of the bankruptcy notice at the end of 1991, the respondent has resided in Cairns, North Queensland.
The applicant is a New Zealand corporation. The debt I have referred to is the Australian dollar equivalent of a judgment given against the respondent in New Zealand. This judgment was for NZD110,287.25; it was registered in the Queensland Supreme Court pursuant to the Reciprocal Enforcement of Judgments Act 1959 (Qld) on 17 January, 1991 (although the amount has been amended to reflect the appropriate exchange rate).
The ground upon which the respondent opposes the making of a sequestration order is that he is an undischarged bankrupt under a sequestration order made by the New Zealand High Court on 4 February, 1991. He will not be eligible for an automatic discharge from that bankruptcy until 4 February, 1994.
An officer of the applicant has sworn that it submitted a proof of debt in the New Zealand bankruptcy which "was accepted by the Official Assignee". I got the impression in the course of argument that the applicant did prove in the respondent's bankruptcy in respect of the debt which is the subject of the registered judgment. In view of the difference between the amount of the judgment debt, NZD110,287.25, and the debt of NZD45,000.00 shown as owing to the applicant in the summary of affairs (which is based on information provided by the respondent to the Deputy Official Assignee), it is not clear whether both these amounts are in respect of the same debt, although they may be.
In support of his objection, the respondent has sworn that he has no assets in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Becker, M.W.

Details

AGLC: Re Becker, M.W.; Ex Parte Nathan Finance Ltd [1992] FCA 342
Case: [1992] FCA 342
Decision Date: 29 MAY 1992

CaseChat Overview and Summary

In the case of Re Becker, M.W., the petitioner, a creditor, sought a sequestration order against the debtor, who was an undischarged bankrupt from New Zealand. The Federal Circuit Court was tasked with determining whether it had the jurisdiction to grant the order despite the debtor's foreign bankruptcy status. The petitioner argued that the debtor's assets were located in Australia and that the local court had the power to act in aid of the New Zealand bankruptcy court.

The primary legal issue before the court was whether it had the authority to exercise its discretion in favour of the petitioner, considering the debtor's foreign bankruptcy status and the implications of international comity. The court considered the relevant factors that it must weigh in exercising its discretion against the applicant, including the debtor's connections to Australia, the location of the debtor's assets, and the potential impact on the New Zealand bankruptcy court's proceedings. The court also discussed the general principles governing the exercise of its jurisdiction in aid of a foreign bankruptcy court.

After considering the evidence and arguments presented, the court concluded that it was not appropriate to exercise its discretion in favour of the petitioner. The court found that the debtor's primary connections were with New Zealand, and his assets were predominantly located there. Furthermore, the court noted that it was not desirable to interfere with the New Zealand bankruptcy court's proceedings, as it would undermine the principles of international comity. Consequently, the court dismissed the petitioner's application for a sequestration order.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The petitioning creditor's application for a sequestration order is dismissed.

Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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