Richmond v BMW Australia Finance Limited (No 1)

[2009] FCAFC 24

FEDERAL COURT OF AUSTRALIA

Richmond v BMW Australia Finance Limited (No 1) [2009] FCAFC 24

Bankruptcy Act 1966 (Cth) ss 37, 188

ROSS RICHMOND v BMW AUSTRALIA FINANCE LIMITED

NSD 1613 of 2008

BLACK CJ, JACOBSON, RARES JJ
19 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1613 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	ROSS RICHMOND Appellant
AND:	BMW AUSTRALIA FINANCE LIMITED Respondent

JUDGES:	BLACK CJ, JACOBSON, RARES JJ
DATE OF ORDER:	19 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an adjournment be refused.

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

The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1613 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	ROSS RICHMOND Appellant
AND:	BMW AUSTRALIA FINANCE LIMITED Respondent

JUDGES:	BLACK CJ, JACOBSON, RARES JJ
DATE:	19 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BLACK CJ

1. The appellant, Mr Richmond, appeals against an order for sequestration made by a federal magistrate: see BMW Australia Finance Ltd v Richmond [2008] FMCA 1431. Mr Richmond has produced to the Court a document which, on the face of it, is a document for the appointment of a controlling trustee, purportedly authorised under s 188 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act). On the basis that such an authority has been given, Mr Richmond asks that the appeal be adjourned so that the procedure provided for upon the appointment of a controlling trustee can take its course.

2. The difficulty with Mr Richmond’s submission is that a sequestration order has already been made against his estate. That order is the subject of this appeal. 

3. Under s 37(1) of the Bankruptcy Act, the Court may suspend the operation of an order made under that Act but s 37(2) makes it plain that the Court does not have power to suspend the operation of a sequestration order. It is for this reason that the order made by Rares J on 16 October 2008 was an order to stay, until a further order, all proceedings under the sequestration order made by the Federal Magistrates Court against the appellant. Although its operation is stayed, the sequestration order itself remains.

4. Under s 188 of the Bankruptcy Act, a debtor who desires to have his or her affairs dealt with without his or her estate being sequestrated may appoint a controlling trustee. Ex hypothesi, Mr Richmond’s estate having been sequestrated (albeit proceedings having been stayed), s 188 can have no operation. Accordingly, the giving of authority to the controlling trustee had no effect. It therefore follows that there is no basis on that ground for the appeal to be adjourned and it should proceed.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.

Associate:

Dated:        10 March 2009

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1613 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	ROSS RICHMOND Appellant
AND:	BMW AUSTRALIA FINANCE LIMITED Respondent

JUDGES:	BLACK CJ, JACOBSON, RARES JJ
DATE:	19 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

JACOBSON J

1. I agree that the adjournment should not be granted for the reasons given by the Chief Justice.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:        10 March 2009

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1613 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	ROSS RICHMOND Appellant
AND:	BMW AUSTRALIA FINANCE LIMITED Respondent

JUDGES:	BLACK CJ, JACOBSON, RARES JJ
DATE:	19 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

RARES J

1. I also agree with the reasons given by the Chief Justice and the order he proposes.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        10 March 2009

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Mr R J Carruthers and Mr D C Price
Solicitor for the Respondent:	Bartier Perry

Date of Hearing:	19 February 2009
Date of Judgment:	19 February 2009