The Owners Strata Plan No 8551 v Chen
[2022] FedCFamC2G 1084
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
The Owners – Strata Plan No 8551 v Chen [2022] FedCFamC2G 1084
File number(s): SYG 1172 of 2022 Judgment of: JUDGE CAMERON Date of judgment: 2 September 2022 Catchwords: PRACTICE AND PROCEDURE – application for annulment of bankruptcy – debtor predeceased creditor’s petition. Legislation: Bankruptcy Act 1966 (Cth) s 153B Division: General Number of paragraphs: 6 Date of hearing: 2 September 2022 Place: Sydney Solicitor for the Applicant: Ms D. Francis, Chambers Russell Solicitor for the Intervener: Ms J. Wilcock, Law Squared ORDERS
SYG 1172 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THE OWNERS--STRATA PLAN NO 8551
Applicant
AND: HAO CHEN
Respondent
DAVID HENRY SAMPSON IN HIS CAPACITY AS TRUSTEE OF HAO CHEN
Intervener
order made by:
JUDGE CAMERON
DATE OF ORDER:
2 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The bankruptcy of Hao Chen be annulled pursuant to s.153B of the Bankruptcy Act 1966.
2.The applicant creditor’s costs of the creditor’s petition proceeding of $14,158.22 be paid out of the deceased estate of Hao Chen.
3.The costs of the trustee appointed by the Court’s order of 29 June 2021 of $41,710.25 be paid out of the deceased estate of Hao Chen.
THE COURT NOTES THAT:
1.Order 2 of the Orders has been inserted pursuant to r 17.05(2)(e) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The applicant in this present matter seeks an order under s.153B of the Bankruptcy Act 1966 (Cth) for the annulment of the bankruptcy of Mr Hao Chen. The affidavit of Ryley Bria Ann Hibbs affirmed 9 August 2022 records the history of the matter up to and subsequent to the sequestration order. It is apparent that all the formalities of service and the necessary steps prefatory to the sequestration order were taken in a way which satisfied the Court when making the sequestration order.
CONSIDERATION
It is to be noted that personal service of the bankruptcy notice was not effected and I mean no criticism by that observation. Its significance lies, however, in the fact that on 3 March 2022 the trustee of the bankrupt estate advised the solicitors acting for the applicant that Mr Chen had died on 20 April 2019, that is to say, approximately 2 years before the sequestration order was made on 29 June 2021.
The evidence before me demonstrates sufficiently clearly that the creditor's petition proceeded on the assumption that Mr Chen was alive and that there was no reason to think otherwise. However, the fact that he was not requires an annulment of the bankruptcy on the basis that the creditor's petition ought not to have been presented in the circumstances.
CONCLUSION
The bankruptcy of Mr Chen will be annulled pursuant to s.153B of the Bankruptcy Act 1966 (Cth).
COSTS
The applicant also seeks payment out of Mr Chen’s deceased estate of the costs ordered in the creditor’s petition proceeding and that seems to me to be an appropriate order to make.
I further order that the costs of the trustee appointed by the Court’s order of 29 June 2021 be paid out of the of Mr Chen’s deceased estate.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 27 March 2023
0
0
0