Re Nemeruck, Anastasia - [1996] FCA 977

IN THE FEDERAL COURT OF AUSTRALIA  )
GENERAL DIVISION  )
BANKRUPTCY DISTRICT OF NEW SOUTH WALES               )         No. NB 1380 of 1994

RE:ANASTASIA NEMERUCK
Applicant

CORAM:Lehane J
PLACE:Sydney
DATE:22 October 1996

MINUTE OF ORDERS

THE COURT ORDERS:

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA  )
GENERAL DIVISION  )
BANKRUPTCY DISTRICT OF NEW SOUTH WALES               )         No. NB 1380 of 1994

RE:ANASTASIA NEMERUCK
Applicant

CORAM:Lehane J
PLACE:Sydney
DATE:22 October 1996

EXTEMPORE REASONS FOR JUDGMENT

LEHANE J: This is an application by the debtor, Mrs Anastasia Nemeruck, for the annulment of a sequestration order made in relation to her estate on 20 June 1994. I am told that there is also an issue (or at least a potential issue) as to whether certain property is, under s 116 of the Bankruptcy Act 1966 (the Act), not divisible among Mrs Nemeruck's creditors; but if that is or becomes an actual issue, it is not one that is relevant to the question whether the sequestration should be annulled.

The jurisdiction to annul a bankruptcy in a case such as the present arises under s 153B of the Act and it may be exercised in circumstances where the Court is satisfied that the sequestration order ought not to have been made. The ground on which it is said that the sequestration order in this case ought not to have been made is that neither the bankruptcy notice nor the petition was properly served on Mrs Nemeruck.

A Mr Peter, a licensed commercial sub‑agent, has sworn affidavits, in a common form, deposing to proper service of both documents on Mrs Nemeruck. Mr Peter has been cross‑examined today. While he was unable to remember the circumstances of service of the documents in these proceedings (hardly surprising given the lapse of time and the number of documents to which he deposed to serving in an average day), he gave evidence that he had never deposed falsely to serving any documents or process.

On the other hand, Mrs Nemeruck has given affidavit evidence, and gave oral evidence before me today, to the effect that the documents were not served on her as deposed by Mr Peter and that she was not, at the times when the documents were said to have been served, at the place, her home, where service was said to have been effected. It is true that, in an affidavit which she swore on 27 August 1996, Mrs Nemeruck, while saying that she had never been served with the documents, did not depose to the detailed circumstances of which she has more recently given evidence; that is to say, that she was not at the relevant time at the place where the documents were said to have been served. But it is evident also, from the material which Mr Harris has tendered on behalf of the Trustee, that the claim that the documents (or at least the petition)…

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 Nemeruck, Anastasia

Details

AGLC: Re Nemeruck, Anastasia [1996] FCA 977
Case: [1996] FCA 977
Decision Date: 22 Oct 1996

CaseChat Overview and Summary

In the case of Re Nemeruck, Anastasia, the applicant, Mrs Anastasia Nemeruck, sought the annulment of a sequestration order made in relation to her estate on 20 June 1994. The primary legal issue before the Court was whether the sequestration order should be annulled on the ground that neither the bankruptcy notice nor the petition was properly served on Mrs Nemeruck. The Court heard evidence from Mr Peter, a licensed commercial sub-agent, who deponed to proper service of both documents, and from Mrs Nemeruck, who asserted that the documents were not served on her at the place and time deposed to by Mr Peter.

Justice Lehane found it impossible to resolve the conflict in evidence satisfactorily. While Mrs Nemeruck's claim that the documents were not served was supported by her consistent assertions since the sequestration order was made, Mr Peter's evidence could not be dismissed outright as false. The statutory condition for annulment required the Court to be satisfied that the sequestration order ought not to have been made, but the Court also had to consider relevant matters in exercising its discretion, such as the delay in applying for annulment and the undisputed fact that Mrs Nemeruck owed a debt to the petitioning creditor.

The Court considered the High Court's decision in Delph Singh v Wood, where it was held that an annulment order was inappropriate where the debt was in fact owed at the time the annulment was sought, despite the delay in making the application. Justice Lehane concluded that this was a case in which the discretion should be exercised in favour of the Trustee, and the application for annulment was dismissed.

Orders