Symes v Holbrook

[2002] FMCA 26

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SYMES v HOLBROOK  [2002] FMCA 26

BANKRUPTCY – Application for annulment pursuant to s.153B of the Bankruptcy Act where sequestration order made upon debtors petition – application unopposed – application refused – whether debtors petition should have been presented – relevant to consider material available at time of presentation of petition.

Re Williams (1968) 13 FLR 10
Re Scott (1975) 6 ALR 558
Re Abbas (1995) 57 FLR 140
Ladyman (1981) 55 FLR 383
Borck v Williamson (1994) 49 FCR 16
Re Almassy (1999) FCA 1004
Stankiewicz v Plata (2000) FCA 1185

Bankruptcy Act 1966 s 153B

Applicant: FREDERICK KEITH SYMES

Respondent: KIM HOLBROOK

File No:   WZ 86 of 2001

Delivered on: 20 February 2002

Delivered at: Perth

Hearing Date: 19 November 2001

Judgment of: McInnis FM

REPRESENTATION

Counsel for the Applicant: Mr D C Leask

Solicitors for the Applicant: Leask & Co

Counsel for the Respondent: Mr F Carles

Solicitors for the Respondent: Carles Solicitors

ORDERS

(1)The application be dismissed.

(2)The applicant shall pay the respondent’s costs to be taxed in default of agreement pursuant to order 62 of the Federal Court Rules.

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

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH

WZ 86 of 2001

FREDERICK KEITH SYMES

Applicant

And

KIM HOLBROOK

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this application FREDERICK KEITH SYMES (the applicant) claims the following:

   1.A declaration that the Applicant’s bankruptcy No. 803 of 2000 be annulled pursuant to s 153B of the Bankruptcy Act 1966 (the Act).

   2.Further or alternatively an order that the proof of an alleged debt of $12,744.81 to be expunged pursuant to s 99 of the Act.

   3.Such further or other order as the court may see fit.

2. The application which was originally commenced in the Federal Court of Australia was transferred to the Federal Magistrates Court by order made on 25 September 2001.

3. KIM DAVID HOLBROOK, (the respondent), a registered trustee in bankruptcy is the respondent to the application.

4. In support of the application the applicant has relied upon affidavits sworn by him on 10 September 2001 and 5 November 2001 and

   
   

   15 November 2001 together with affidavits of his mother Anna Alena Symes sworn 15 November 2001, his daughter, Belinda Jean Symes sworn 15 November 2001 and an affidavit sworn by his solicitor David Charles Leask sworn 16 November 2001.

5. The respondent has relied upon affidavits sworn by him on

   
   

   22 October 2001 and 13 November 2001.

6. The deponents were not required for the purpose of cross-examination and the application proceeded by way of submissions for and on behalf of the parties.

7. The respondent did not formally oppose the application for annulment and there was no evidence before the court that the application was opposed by any creditor. Quite properly the respondent’s representative however did make submissions bringing to the attention of the court various authorities which may be relied upon in the exercise of the…