St George Bank Ltd v Helfenbaum

FEDERAL COURT OF AUSTRALIA

St George Bank Ltd v Helfenbaum [2001] FCA 559

ST GEORGE BANK LIMITED (ACN 005 513 070) v JEFFREY LEON HELFENBAUM (also known as JEFFREY SIMON WOOD)

V7259 of 2000

RYAN J
MELBOURNE
14 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V7259 of 2000

IN THE MATTER of JEFFREY LEON HELFENBAUM

BETWEEN:	ST GEORGE BANK LIMITED (ACN 005 513 070) Applicant
AND:	JEFFREY LEON HELFENBAUM (also known as JEFFREY SIMON WOOD) Respondent
JUDGE:	RYAN J
DATE OF ORDER:	14 MAY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS:

1.THAT there be a sequestration order against the estate of the debtor, the date of the act of bankruptcy being noted as 31 March 2000.

2.THAT the costs of the petitioning creditor and the supporting creditors (including any reserved costs and the costs of the Motion on Notice dated 27 April 2001) be taxed and paid out of the estate of the bankrupt in accordance with the Act.

3.THAT there be a stay of execution of the sequestration order for twenty-one days from the date of this Order.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V7259 of 2000

IN THE MATTER of JEFFREY LEON HELFENBAUM

BETWEEN:	ST GEORGE BANK LIMITED (ACN 005 513 070) Applicant
AND:	JEFFREY LEON HELFENBAUM (also known as JEFFREY SIMON WOOD) Respondent

JUDGE:	RYAN J
DATE:	14 MAY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is the return of a creditor’s petition in which the creditor’s petition relies on an act of bankruptcy of the kind specified in s 40(1()(d) of the Bankruptcy Act 1966 (Cth) (“the Act”). Section 40(1) provides, so far as is relevant:

   “A debtor commits an act of bankruptcy in each of the following cases:

   .....

   (d)      if:

   (i)execution has been issued against him or her under process of a court and any of his or her property has, in consequence, either been sold by the sheriff or held by the sheriff for 21 days;  or

   (ii)execution has been issued against him or her under process of a court and has been returned unsatisfied;”

2. There is undisputed evidence that a warrant to seize property of the debtor to recover $23,907.45 was issued out of the Magistrates Court at Melbourne on 8 February 2000.  The Deputy Sheriff returned it unsatisfied to that Court on 31 March 2000.  Section 41(1)(d)(ii) requires a proper return.  As Gibbs J said of the counterpart to s 41(1)(d) in Re Johnson Ex parte Greendale Engineering and Cables Pty Ltd (1967) 11 FLR 335, at 339;

   “In the context of s.52 (e) the word “returned” is not used simply in the sense of “sent back”.  The word “return” has of course a special and well-known sense in relation to a writ of execution.  A return to a writ in the legal sense is the written report of the sheriff or his officer…