Re Johnson F.E. Ex parte Westpac Banking Corporation
[1995] FCA 771
•20 SEPTEMBER 1995
CATCHWORDS
BANKRUPTCY - Whether sequestration orders should be made on debtors petitions or creditors petitions - creditors petitions alleging earliest available act of bankruptcy - no demonstrable reason why sequestration order ought not be made on creditors petitions.
Re Francis Edward JOHNSON; Ex parte Frances Edward Johnson
No. QP526 of 1995
Re Francis Edward JOHNSON; Ex parte Westpac Banking Corporation
No. QP422 of 1995
Re Francis Edward JOHNSON; Ex parte Equus Financial Services Limited, Philip Arthur Hennessy, Joseph Dwyer, Nick Russo and Alexander Robert Mackay Macintosh
No. QP434 of 1995
Re Anthony James JOHNSON; Ex parte Anthony James Johnson
No. QP527 of 1995
Re Anthony James JOHNSON; Ex parte Westpac Banking Corporation
QP420 of 1995
Re Anthony James JOHNSON; Ex parte Equus Financial Services Limited, Philip Arthur Hennessy, Joseph Dwyer, Nick Russo and Alexander Robert Mackay Macintosh
No. QP433 of 1995
Cooper J., Brisbane, 20 September 1995
IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND
No. QP526 of 1995
RE: FRANCIS EDWARD JOHNSON
EX PARTE: FRANCIS EDWARD JOHNSON
Debtor
No. QP422 of 1995
RE: FRANCIS EDWARD JOHNSON
EX PARTE: WESTPAC BANKING CORPORATION
Petitioning Creditor
No. QP434 of 1995
RE: FRANCIS EDWARD JOHNSON
EX PARTE: EQUUS FINANCIAL SERVICES LIMITED,
PHILIP ARTHUR HENNESSY, JOSEPH DWYER,
NICK RUSSO and ALEXANDER ROBERT MACKAY
MACINTOSH
Petitioning Creditors
No. QP527 of 1995
RE: ANTHONY JAMES JOHNSON
EX PARTE: ANTHONY JAMES JOHNSON
Debtor
No. QP420 of 1995
RE: ANTHONY JAMES JOHNSON
EX PARTE: WESTPAC BANKING CORPORATION
Petitioning Creditor
No. QP433 of 1995
RE: ANTHONY JAMES JOHNSON
EX PARTE:
EQUUS FINANCIAL SERVICES LIMITED,
PHILIP ARTHUR HENNESSY, JOSEPH DWYER,
NICK RUSSO and ALEXANDER ROBERT MACKAY
MACINTOSH
Petitioning Creditors
JUDGE MAKING ORDER: Cooper J.
WHERE MADE: Brisbane
DATE OF ORDER: 20 September 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The estates of Francis Edward Johnson and Anthony James Johnson be sequestrated.
The costs of Westpac Banking Corporation of and incidental to the petitions, including reserved costs, if any, be costs in the administration of the estates of the bankrupts.
THE COURT DIRECTS THAT:
The Registrar not accept the petitions presented by Francis Edward Johnson and Anthony James Johnson
THE COURT FURTHER ORDERS THAT:
Petitions number QP433 and QP434 of 1995 be dismissed.
The costs of Equus Financial Services Limited of and incidental to the petitions, including reserved costs, if any, be costs in the administration of the estates of the bankrupts.
The costs of Equus Financial Services Limited of attending in support of petitions QP422 and QP420 of 1995 presented by Westpac Banking Corporation including reserved costs, if any, be costs in the administration of the estates of the bankrupts.
Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND
No. QP526 of 1995
RE: FRANCIS EDWARD JOHNSON
EX PARTE: FRANCIS EDWARD JOHNSON
Debtor
No. QP422 of 1995
RE: FRANCIS EDWARD JOHNSON
EX PARTE: WESTPAC BANKING CORPORATION
Petitioning Creditor
No. QP434 of 1995
RE: FRANCIS EDWARD JOHNSON
EX PARTE: EQUUS FINANCIAL SERVICES LIMITED,
PHILIP ARTHUR HENNESSY, JOSEPH DWYER,
NICK RUSSO and ALEXANDER ROBERT MACKAY
MACINTOSH
Petitioning Creditors
No. QP527 of 1995
RE: ANTHONY JAMES JOHNSON
EX PARTE: ANTHONY JAMES JOHNSON
Debtor
No. QP420 of 1995
RE: ANTHONY JAMES JOHNSON
EX PARTE: WESTPAC BANKING CORPORATION
Petitioning Creditor
No. QP433 of 1995
RE: ANTHONY JAMES JOHNSON
EX PARTE:
EQUUS FINANCIAL SERVICES LIMITED,
PHILIP ARTHUR HENNESSY, JOSEPH DWYER,
NICK RUSSO and ALEXANDER ROBERT MACKAY
MACINTOSH
Petitioning Creditors
CORAM: Cooper J.
PLACE: Brisbane
DATE: 20 September 1995
REASONS FOR JUDGMENT
The court has before it two creditors' petitions in each of the estates of Francis Edward Johnson and Anthony James Johnson; a petition of Westpac Banking Corporation and a petition of Equus Financial Services Limited and others. Additionally, the court has a referred debtors petition presented by the debtors on 14 September 1995. The petition of Westpac was signed and verified by affidavit on 3 August 1995 and was filed in this court on 4 August 1995. As between Westpac and the debtors there is no real dispute as to which of the two petitions should be the effective one for the purpose of a bankruptcy administration. However, Equus, the petitioning creditor in the second petition which was presented and filed on 8 August 1995, opposes the making of the bankruptcy administration contingent upon a direction to the Registrar to accept the debtors own petition.
Mr Rose on behalf of Equus, submits that there has been no demonstrable reason shown as to why the sequestration order ought not to be made upon the petition of Westpac in the ordinary course, such petition being one in respect of which Equus and others appear and support. Mr Wilkins on behalf of the debtors, did not offer any particular reason as to why the matter ought proceed on the debtors petition rather than Westpac's creditor's petition. The debtors petition was apparently filed in full knowledge of the other petitions and merely for the purpose of "tying up loose ends".
It is submitted by Mr Wilkins that there is no dispute that the act of bankruptcy alleged in the Westpac petition is the earliest available act of bankruptcy and by virtue of s.115(2) of the Bankruptcy Act 1966 (Cth) ("the Act") the relation back period would refer back to that date. On the other hand, Mr Rose submits that a finding of the court as to the act of bankruptcy would alleviate any possibility of argument in the administration of the estate as to whether or not that was in fact the earliest act of bankruptcy for the purpose of relation back.
It seems to me that, all things being equal, and the petition of Westpac being the earliest petition in point of time, the sequestration order ought to be made on that petition. Certainly, there is no material before me to indicate any advantage accruing either to the judgment debtors or to any creditor of making of an order directing the Registrar to accept the debtors petition.
Accordingly, I am satisfied that the act of bankruptcy set forth in the petition of Westpac Banking Corporation has been made out and that the case is one for the making of a sequestration order in relation to each of the estates of Anthony James Johnson and Francis Edward Johnson, and I will order that each estate be sequestrated.
Having heard the solicitors on behalf of each of the parties, I am satisfied that the Equus Financial Services Limited in the presentation and maintenance of a petition for the sequestration of each of the separate estates of the debtor has not acted unreasonably and that, in the exercise of my discretion, notwithstanding that the petition will be dismissed, I ought to order that the costs of and incidental to the petition be costs in the administration of the estates of the bankrupts.
THE COURT ORDERS THAT:
The estates of Francis Edward Johnson and Anthony James Johnson be sequestrated.
The costs of Westpac Banking Corporation of and incidental to the petitions, including reserved costs, if any, be costs in the administration of the estates of the bankrupts.
THE COURT DIRECTS THAT:
The Registrar not accept the petitions presented by Francis Edward Johnson and Anthony James Johnson
THE COURT FURTHER ORDERS THAT:
Petitions number QP433 and QP434 of 1995 be dismissed.
The costs of Equus Financial Services Limited of and incidental to the petitions, including reserved costs, if any, be costs in the administration of the estates of the bankrupts.
The costs of Equus Financial Services Limited of attending in support of petitions QP422 and QP420 of 1995 presented by Westpac Banking Corporation including reserved costs, if any, be costs in the administration of the estates of the bankrupts.
I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper.
Date:20 September 1995
Associate
Solicitors for the Debtors: Clayton Utz
Solicitors for the Petitioning Creditor
in QP420 of 1995 and QP422 of 1995: Corrs Chambers Westgarth
Solicitors for the Petitioning Creditor
in QP433 of 1995 and QP434 of 1995: Gadens Ridgeway
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