Re Clyne, Peter Leopold v Ex parte Deputy Commissioner of Taxation

[1983] FCA 258

Re: PETER LEOPOLD CLYNE
And: DEPUTY COMMISSIONER OF TAXATION
No. P4 of 1983
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES
AND THE AUSTRALIAN CAPITAL TERRITORY
Beaumont J.

CATCHWORDS

Bankruptcy - Debtor bankrupt upon presentation of debtor's petition - Creditor's petition awaiting hearing - Opposition to creditor's petition - Power of court to make sequestration order on earlier creditor's petition - Effect of sequestration order on debts owed by bankrupt - Circumstances when court has power to make sequestration order notwithstanding earlier bankruptcy - interests of general body of creditors considered - relation back.

Bankruptcy Act, 1966 ss.52(1), 55, 55(3)(b), 58(3)(b), 82(1), 84(1), 85(1), 86(1)

HEARING

SYDNEY

#DATE 7:10:1983

ORDER

1. That a sequestration order be made against the estate of the debtor, such order to take effect on 6 September, 1983 prior to the presentation by the debtor of his own petition pursuant to the provisions of s.55 of the Act.

2. Declare that William Edward Andrew is the trustee of the estate of the debtor.

3. Order that costs (including reserved costs) be taxed and paid according to the Act.

4. Order that costs of the trustee of intervening in this proceeding be taxed and paid according to the Act.

5. Direct that a draft of this order be delivered to the Registrar within seven days in accordance with Rule 124(2).

JUDGE1

By his petition dated 4 January, 1983, the petitioning creditor seeks the making of a sequestration order against the estate of the debtor pursuant to s.52(1) of the Bankruptcy Act, 1966 ("the Act"). The hearing of the petition was initially fixed for 12 April, 1983. The hearing of the petition was adjourned on that date and was later further adjourned from time to time. On 19 September, 1983, the petitioning creditor sought to proceed with the petition. However, in the intervening period, the debtor presented his own petition (on 6 September, 1983) pursuant to s.55 of the Act and thereby became bankrupt by force of that provision.

The debtor now opposes the petition of the petitioning creditor on the following grounds:

"1. On the 6th day of September 1983 the respondent filed a petition pursuant to the provisions of Section 55 of the Bankruptcy Act 1966-1982 (Cth) and this was accepted by the Registrar.

2. Thereupon, by virtue of the presentation of the said petition, and by force of Section 55(3)(b) of the said Act, the respondent became a bankrupt.

3. This Honourable Court has no power to make a sequestration order against a bankrupt except in relation to a debt or debts which arose or came into existence or were incurred or contracted after the date of the first bankruptcy.

4. The debt on which this petition is based arose entirely prior to the bankruptcy referred to in paragraph 2 hereof.

5. On and as from the 6th day of September, 1983 the petitioner's debt ceased to be a debt due or payable by…