Walton v Klewer

[2005] FMCA 878

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WALTON v KLEWER [2005] FMCA 878

BANKRUPTCY – Creditor’s petition – whether the petition contains a defect – date of the act of bankruptcy – whether the petition is an abuse of process – failure to file a certificate of judgment of the Local Court in the Local Court registry – solvency of the debtor – whether the debtor is a recalcitrant but solvent debtor – capacity to borrow against equity in her home.

Bankruptcy Act 1966 (Cth), ss.41, 52

International Alpaca Management Pty Ltd v Ensor [1999] FCA 72
Klewer v Walton [2004] FCAFC 284
Re Sarina; ex parte Wollondilly Shire Council (1980) 32 ALR 596
Sandell v Porter (1966) 115 CLR 666

Applicant: IAN WALTON

Respondent: LUCY PATRICIA KLEWER

File Number: SYG 2483 of 2004

Judgment of: Driver FM

Hearing dates: 23 June & 20 September 2005

Delivered at: Sydney

Delivered on: 20 September 2005

REPRESENTATION

Counsel for the Applicant: Mr D Durston, pro bono publico

Counsel for the Respondent: Mr P See

Solicitors for the Respondent: Hannigans

ORDERS

1. A sequestration order be made against the estate of Lucy Patricia Klewer.

2. The applicant creditor’s costs, including reserved costs if any, be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).

3. The Court notes that a copy of these orders is to be given to the Official Receiver in Sydney within two days after the orders are entered.

4. The Court notes that the date of the act of bankruptcy is 30 March 2004.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2483 of 2004

IAN WALTON

Applicant

And

LUCY PATRICIA KLEWER

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. Ian Walton seeks a sequestration order against Lucy Klewer.  Mr Walton proceeds upon his amended creditor’s petition filed on 23 September 2004.  The petition is supported by the following affidavits:

   ·the affidavit of Mr Walton filed on 27 May 2005 verifying paragraphs 1, 2 and 3 of the amended petition;

   ·the affidavit of debt of Mr Walton filed on 22 June 2005;

   ·the affidavit of personal service of the creditor’s petition of Amanda Williams filed on 3 December 2004;

   ·the affidavit of service of certain affidavits of Noel Hart Austin filed on 31 May 2005;

   ·the affidavit of service of certain further affidavits by James Joseph McKeown filed on 3 December 2004;

   ·the affidavits of search by Stacey Mary Wills and Gregory James Freeman both filed on 22 June 2005;

   ·four affidavits by Francis Gregory Hannigan filed on 27 May 2005, 14 June 2005, 23 June 2005 and 11 January 2005.

2. Mr See, who appeared for Mr Walton, also tendered a number of documents in support of the creditor’s petition, which form exhibits A1–A6.

3. The petition is opposed by Ms Klewer on three grounds.  The grounds are set out in her notice of intention to oppose the petition filed on 7 December 2004, namely:

   ·the amended creditor’s petition allegedly misstates the date of the act of bankruptcy;

   ·the creditor’s petition is said to be an…