Thompson v Lane (Trustee) (No 3)

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FEDERAL COURT OF AUSTRALIA

Thompson v Lane (Trustee) (No 3) [2022] FCA 128  

File number: QUD 113 of 2021
Judgment of: LOGAN J
Date of judgment: 18 February 2022
Catchwords: BANKRUPTCY – application for annulment of bankruptcy – relevant discretionary factors under s 153B of Bankruptcy Act 1966 (Cth) – where application for annulment concerned bankruptcy grounded on acceptance of a debtor’s petition – where the Official Receiver declined to exercise discretion to reject debtor’s petition when presented – where debtor contends judgment debts invalid – where no evidence that judgments were result of fraud, collusion or miscarriage of justice – where no other reason to go behind judgment debts – where debtor likely insolvent at date of presentation of debtor’s petition – where debtor insolvent at time of hearing – where no proposal by debtor to discharge costs of administration of the debtor’s estate – where annulment not in the public interest or interest of creditors – application dismissed
Legislation:

Bankruptcy Act 1966 (Cth) ss 34A, 55, 77, 153B, 154

Body Corporate and Community Management Act 1997 (Qld) ss 153, 312

Corporations Act 2001 (Cth) s 95A

Property Law Act 1974 (Qld) s 85

Public Governance, Performance and Accountability Act 2013 (Cth)

Public Service Act 1999 (Cth)

Body Corporate and Community Management (Standard Module) Regulation 2020 (Qld) reg 166

Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Colhoun v Green [1919] VLR 196

Grant v United Kingdom Switchback Railways Company (1888) 40 Ch D 135

HSBC Bank Australia Ltd v Wang [2021] QSC 58

Lewis v Doran (2004) 184 FLR 454

Lewis v Doran (2005) 219 ALR 555

McKean v Maloney [1988] 1 Qd R 628

Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676

Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132

Re Oates; Ex parte Deputy Commissioner of Taxation (1987) 17 FCR 402

Re Papps; Ex parte Tapp (1987) 78 FCR 524

Sandell v Porter (1966) 115 CLR 666

Thompson v Body Corporate for Arila Lodge & Ors [2019] QCA 267

Thompson v Body Corporate for Arila Lodge & Ors [2019] QCA 296

Whitton as Trustee of the Estate of Rose v Regis Towers Real Estate Pty Ltd (in administration) (2007) 161 FCR 20

Wren v Mahoney (1972) 126 CLR 212

Zaghloul v Jewellery & Gift Buying Service Pty Ltd t/as Nationwide Jewellers [2020] FCA 1045

Division: General Division
Registry: Queensland
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 87
Date of hearing: 30 August 2021
Counsel for the Applicant: The applicant appeared in person
Counsel for the First Respondent: Ms S Philippou
Solicitor for the First Respondent: Shand Taylor Lawyers
Counsel for the Second Respondent: Mr B Strangman
Solicitor for the Second Respondent: Grace Lawyers
Solicitor for the Interested Person: Mahoneys Solicitors

ORDERS

QUD 113 of 2021
BETWEEN:

EMMA NARELLE CATHRYN THOMPSON

Applicant

AND:

MORGAN LANE AS TRUSTEE OF THE BANKRUPT ESTATE OF EMMA NARELLE CATHRYN THOMPSON

First Respondent

BODY CORPORATE FOR…

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Details
Case
[2022] FCA 128
Decision Date

CaseChat Overview and Summary

The matter before the court was an application by the applicant, Thompson, seeking the annulment of their bankruptcy. The bankruptcy arose from the acceptance of a debtor’s petition, and the Official Receiver had declined to exercise their discretion to reject the petition when it was presented. The primary contention of the applicant was that the judgment debts upon which the bankruptcy was grounded were invalid, though they provided no evidence to support this claim nor any indication that the judgments resulted from fraud, collusion, or a miscarriage of justice. The court was required to determine whether there were grounds to annul the bankruptcy under the relevant discretionary factors outlined in section 153B of the Bankruptcy Act 1966 (Cth).

The court examined the various discretionary factors, including whether there was a reason to go behind the judgment debts and whether the applicant was likely insolvent at the time the debtor's petition was presented. It found that there was no evidence to suggest that the judgments were invalid and that there was no other reason to disregard them. Additionally, the court noted that the applicant was likely insolvent at the time of the presentation of the debtor's petition and remained insolvent at the time of the hearing. The applicant also failed to propose a scheme to discharge the costs of administering the estate. The court concluded that annulment was not in the public interest or in the interest of the creditors.

The court dismissed the application for annulment, emphasising that the discretionary factors did not favour the annulment of the bankruptcy. It found that the applicant had not demonstrated sufficient grounds for the exercise of the court's discretion under section 153B of the Bankruptcy Act. Consequently, the court ordered that the applicant’s annulment application be dismissed.

Orders

Orders of the court

1. The applicant’s annulment application be dismissed.

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

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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