Shaw v Yarranova Pty Ltd

FEDERAL COURT OF AUSTRALIA

Shaw v Yarranova Pty Ltd [2016] FCA 88

File number:

VID 774 of 2014

Judge:

PAGONE J

Date of judgment:

15 February 2016

Catchwords:

BANKRUPTCY – application to annul bankruptcy – sequestration order – whether applicant indemnified from paying debts set out in bankruptcy notice and creditor’s petition – whether respondent lacked legal standing to be named as creditor – whether applicant solvent – whether court should look behind judgment upon which sequestration order based – whether solicitors for respondent creditors had authority to act – exercise of discretion to annul bankruptcy – conduct of applicant relevant to exercise of discretion

Legislation:

Bankruptcy Act 1966 (Cth) s 153B

Cases cited:

Bulicv Commonwealth Bank of Australia Limited [2007] FCA 307

Francis v Eggleston Mitchell Lawyers Pty Ltd [2014] FCAFC 18

Hacker v Weston [2015] FCA 363

Halliday v High Performance Personnel Pty Ltd (in liq) (1993) 67 ALJR 678

Hawksford v Hawksford [2005] NSWSC 463

Makhoul v Barnes (1995) 60 FCR 572

Marek v Tregenza (1963) 109 CLR 1

Ozer v Australian Liquor Marketers Pty Ltd [2001] FCA 1197

Re Flatau; ex parte Scotch Whisky Distillers Limited (1888) 22 QBD 83

Re Lawson (1939) 11 ABC 137

Re Sarina; ex parte Wollondilly Shire Council (1980) 32 ALR 596

Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13

Shaw v Yarranova and Another (Unreported, Supreme Court of Victoria, 2 June 2008)

Shaw v Yarranova Pty Ltd [2011] VSCA 55

Shaw v Yarranova Pty Ltd [2014] FCA 557

Stankiewicz v Plata [2000] FCA 1185

Wolff v Donovan (1991) 29 FCR 480

Wood v Inglis [2008] NSWSC 1147

Yarranova Pty Ltd v Shaw(No 2) [2014] FCA 616

Date of hearing:

21-22 April, 20-21 July and 21-23 December 2015

Registry:

Victoria

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Counsel for the Applicant:

The applicant appeared in person

Counsel for the Respondents:

Mr P Fary

Solicitor for the Respondents:

Arnold Bloch Leibler

Solicitor for the Official Trustee in Bankruptcy:

Ms N Angelo of Harris Carlson Lawyers

ORDERS

VID 774 of 2014

BETWEEN:

JOHN RASHLEIGH SHAW

Applicant

AND:

YARRANOVA PTY LTD (ACN 077 517 616)

First Respondent

NEWQUAY STAGE 2 PTY LTD (ACN 086 482 644)

Second Respondent

JUDGE:	PAGONE J
DATE OF ORDER:	15 FEBRUARY 2016

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondents’ costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PAGONE J:

1. On 17 December 2014 Mr Shaw commenced this proceeding under s 153B of the Bankruptcy Act 1966 (Cth) to have annulled, or to have set aside, a sequestration order which had been made on 11 June 2014 by Gordon J in Yarranova Pty Ltd v Shaw(No 2) [2014] FCA 616. Mr Shaw’s application was accompanied by an affidavit dated 17 December 2014 setting out his grounds in general terms. Mr Shaw subsequently filed additional affidavits adding to…