Rvan _\ Application has been made by Anthony Ginnane ("the bankrupt") seeking an order pursuant to s.153B of the
Bankruptcy Act 1966 ("the Act") that the sequestration order
made against his estate on 30 August 1993 be annulled on the ground that it ought not to have been made ("the annulment application"). Consideration of the application requires examination of the lengthy and often unsatisfactory history of the bankruptcy proceedings in respect of the bankrupt.

AUSTRCI "

On 21 November 1991 the bankrupt signed an authority pursuant to s.188 of the Act authorizing Barry Keith Taylor ("Taylor") to call a meeting of the bankrupt's creditors for the purposes of Part X of the Act and to take over the control of his property in accordance with that Part. On 25 November 1991 Taylor consented to act in accordance with the authority.

- 7 JUL 1994
FEDERAL O U R T Of

On 5 December 1991 the s.188 authority together with an affidavit verifying the affairs of the bankrupt, a statement pursuant to S. 188(2) (c) of the Act, and a report prepared by
Taylor as controlling trustee of the estate of the bankrupt pursuant to s.l89(A) were filed with the Registrar in Bankruptcy for the Bankruptcy District of Victoria. In each of the first three documents the bankrupt is referred as "Anthony Ginnane of Llnlithgow, 653 Burke Road, Camberwell Victoria 3124".
Pursuant to s.l88(l)(a) of the Act, a debtor who desires to have his or her affairs dealt with under Part X must, at the time of signing the s.188 authority, be either personally present or ordinarily resident in Australia. It is common ground that the s.188 authority was executed by the bankrupt when he was personally present in Australia.
Pursuant to s.194 of the Act, Taylor called a meeting of creditors of the bankrupt which was held on 19 December 1991.

The only resolution passed at that meeting was to adjourn the
meeting to 31 January 1992. The meeting was reconvened and
subsequently adjourned on 31 January 1992, 14 February 1992 and 10 March 1992. On the latter occasion the meeting resumed and a special resolution was proposed by the bankrupt embodying a composition with his creditors. That special resolution was in these terms:

"... that the proposal put forward by AUTBOttr GI- for a
Composrtlon pursuant to Part X of the Bankruptcy Act 1966 lncorporatrng the following provlslons be accepted:
1. THAT this Composition shall be in full settlement of all debts as at the date of its acceptance by Creditors, being the 10th March, 1992.

2.

- THAT the Trustee of thls Composition shall be a registered
Trustee nom~nated by the creditors.
3. m I covenant…

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 Ginnane; Ex parte Ginnane

Details

AGLC: Re Ginnane; Ex parte Ginnane [1994] FCA 426
Case: [1994] FCA 426
Decision Date: 6 Jul 1994

CaseChat Overview and Summary

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The applicant, Anthony Ginnane, sought an order under s.153B of the Bankruptcy Act 1966 annulling the sequestration order made against his estate on 30 August 1993. The application was dismissed. The applicant had not established that, in the light of facts which existed at the time when the sequestration order was made, the Court ought not to have exercised its discretion in favour of sequestration. The bankrupt had been dilatory in the prosecution of his application to set aside the decision of the controlling trustee at the meeting of creditors held on 10 March 1992. The application for an adjournment of the hearing of the creditor's petition was not made, even though there was an intention to prosecute the application. The refusal of the application for an adjournment was entirely appropriate, given the history of the matter. It was also appropriate for the Court to proceed to make a sequestration order on the creditor's petition. The interests of the public would not be served by an annulment of the bankruptcy.

Orders