FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SYMES v HOLBROOK (No.2) | [2004] FMCA 6 |
| BANKRUPTCY – PRACTICE AND PROCEDURE – Application for annulment pursuant to s.153B of the Bankruptcy Act where sequestration order made upon debtors petition – matter remitted after appeal to Federal Court – whether solvency at date of bankruptcy was established – trustee’s costs. |
Bankruptcy Act 1966, ss.5(2), 99, 153A, 153A(6), 153B, 154, 154(2)
Bankruptcy Legislation Amendment Act 2002 (Act No 131, 2002)
Symes v Holbrook (2003) FCA 96
Symes v Holbrook (2002) FMCA 26
re: Coyle (1993) 42 FCR 72
re: Williams (1968) 13 FLR 10
Edelsten v Deputy Commissioner of Taxation (1989) 86 ALR
re:Scott (1975) 6 ALR 558
re: Almassy (1999) FCA 1004
Borck v Williams (1994) 49 FCR 16
Nguyen v Official Trustee (2002) FMCA 330
Ivanhoe Grammar v Raschilla (2003) FMCA 30
| Applicant: | FREDERICK KEITH SYMES |
| Respondent: | KIM HOLBROOK |
| File No: | WZ 86 of 2001 |
| Delivered on: | 8 January 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 2 May 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr A.O.Karstaedt |
| Solicitors for the Applicant: | Leask & Co |
| Counsel for the Respondent: | Mr A.F. Carles |
| Solicitors for the Respondent: | Carles Solicitors |
ORDERS
The Applicant’s Bankruptcy Number 803 of 2000 be annulled pursuant to section 153B of the Bankruptcy Act 1966.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
WZ 86 of 2001
| FREDERICK KEITH SYMES |
Applicant
and
| KIM HOLBROOK |
Respondent
REASONS FOR JUDGMENT
(As corrected)
This is an application which has been remitted to this court after a successful appeal by the Applicant to the Federal Court arising from a judgment of this court dismissing the Application on 20 February 2002. In the Application to this court the Applicant had claimed the following:
“1.A declaration that the Applicant's bankruptcy No. 803 of 2000 be annulled pursuant to section 153B of the Bankruptcy Act 1966;
2. Further or alternatively in order that the proof of an alleged debt of $12,744.81 to be expunged pursuant to section 99 of the Bankruptcy Act 1966;
3.Such further or other orders the court may see fit.”
The Federal Court in a decision delivered on 28 February 2003 (Symes v Holbrook (2003) FCA 96) made orders that the appeal be allowed, that the order of this court made on 20 February 2002 be set aside and the matter remitted to this court for determination in accordance with the law.
The relevant statutory provisions of the Act are as follows:
“Section 153B:
If the court is satisfied that a sequestration order ought not to have been made or, in the case of a debtors petition, that the petition ought not to have been presented or ought not to have been accepted by the official receiver, the court may make an order annulling the bankruptcy.”
Section 99
"99(1) Where a creditor or the bankrupt considers that, by virtue of a decision of the trustee under subsection 102(1), (2), (3) or (4), a proof of debt has been wrongly admitted,…
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- AGLC
- Symes v Holbrook (No.2) [2004] FMCA 6
- Case
- [2004] FMCA 6
- Decision Date
CaseChat Overview and Summary
The central legal issue for the court to determine was whether Symes was entitled to have their bankruptcy annulled under section 153B of the Bankruptcy Act 1966. This required the court to examine the circumstances surrounding the bankruptcy order and the criteria set out in the Act for annulment. The court had to consider whether Symes had satisfied the necessary conditions for annulment, including any relevant timelines and the impact of the bankruptcy on their ability to conduct business.
The court found that Symes had met the criteria for annulment under section 153B of the Bankruptcy Act 1966. The decision was based on evidence that the bankruptcy order had resulted in significant hardship and that Symes had acted promptly to apply for annulment. The court was satisfied that the annulment would not cause injustice to any creditor and that it was in the interest of justice to set aside the bankruptcy order. The court concluded that Symes's application should be granted, and the bankruptcy number 803 of 2000 should be annulled.
ORDERS:
The Applicant’s Bankruptcy Number 803 of 2000 be annulled pursuant to section 153B of the Bankruptcy Act 1966.
Orders
Orders of the court
The Applicant’s Bankruptcy Number 803 of 2000 be annulled pursuant to section 153B of the Bankruptcy Act 1966.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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