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Wong v Robinson

Wong v Robinson

Case [1995] FCA 805 15 September 1995

Bankruptcy

Sequestration Order

Annulment of Bankruptcy

Service of Process

Costs

Discretion of the Court

Insolvency Law

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CATCHWORDS

BANKRUPTCY - Annulment - Service of Creditor's Petition - Service valid where debtor understands the nature of the document left near the debtor, even if the serving party does not state its nature - exercise of discretion as to whether to annul the bankruptcy where the debtor is solvent.

Bankruptcy Act 1966 (Cth), s 153B
Bankruptcy Rules 1968 (Cth), r 15

Re O'Sullivan; Ex parte O'Sullivan v Commonwealth Bank of Australia (1995) 129 ALR 295.
Re Ditfort; Ex parte Deputy Commissioner of Taxation (NSW) (1988) 19 FCR 347.
Re Frank; Ex parte Piliszky (1987) 16 FCR 396.
Re Raymond; Ex parte Raymond (1992) 36 FCR 424.
Re Gollan; Ex parte Gollan (1992) 40 FCR 38.
Re D'Onofrio; Ex parte Blyth (1983) 76 FLR 136.
Re Finn; Ex parte Finn v Amoco Australia Ltd (1982) 58 FLR 54.

KATHLEEN WONG; EX PARTE WONG v ROBINSON
NB 515 of 1995

Sackville J.
Sydney
15 September, 1995

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )
BANKRUPTCY DIVISION ) NO. NB 515 of 1995

RE: KATHLEEN WONG
Debtor

EX PARTE: KATHLEEN WONG
Applicant/Debtor

PATRICIA MAY ELIZABETH
  ROBINSON t/as P.M.E.
  ROBINSON & CO
  Respondent/Creditor

CORAM:    SACKVILLE J.
PLACE:    SYDNEY
DATE:     15 SEPTEMBER, 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

The hearing of the application be adjourned until 29 September 1995 at 9.30 a.m. for further orders.

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

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NB 515 of 1995
BANKRUPTCY DIVISION )

RE: KATHLEEN WONG
Debtor

EX PARTE: KATHLEEN WONG
Applicant/Debtor

PATRICIA MAY ELIZABETH
  ROBINSON t/as P.M.E.
  ROBINSON & CO
  Respondent/Creditor

CORAM:    SACKVILLE J.
PLACE:    SYDNEY
DATE:     15 SEPTEMBER, 1995

REASONS FOR JUDGMENT

The applicant is a bankrupt, against whom a sequestration order was made on 13 March 1995. The order was made on the petition of the respondent creditor, trading as P.M.E. Robinson & Co, Solicitors. The creditor's petition claimed that the present applicant was indebted in the sum of $7,787.59, being the amount due under a final judgment recovered in the Local Court on 6 September 1994, including a small amount of interest. The act of bankruptcy was the failure of the debtor to comply, on or before 2 December 1994, with the requirements of the bankruptcy notice that was served on 31 October 1994.

The present application is brought under s.153B of the Bankruptcy Act 1966 (Cth) to annul the sequestration order. Section 153B provides as follows:

"If the Court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor's petition, that the petition ought not to have been presented or ought not to have been accepted by the Registrar, the Court may make an order annulling the bankruptcy."

Service of the Petition
One of the issues raised by Mr Freeman, who appeared on behalf of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wong v Robinson

Details

AGLC: Wong v Robinson [1995] FCA 805
Case: [1995] FCA 805
Decision Date: 15 SEPTEMBER 1995

CaseChat Overview and Summary

Kathleen Wong, the bankrupt, sought annulment of her sequestration order, which was made on the petition of Patricia May Elizabeth Robinson t/as P.M.E. Robinson & Co, Solicitors. The application raised issues of the validity of the service of the creditor's petition and the appropriateness of the sequestration order, given the debtor's financial position at the time. The court was required to determine whether the service of the petition was valid under the Bankruptcy Rules 1968 (Cth), and whether the sequestration order should be annulled under s 153B of the Bankruptcy Act 1966 (Cth). The court also needed to consider the debtor's solvency and whether the sequestration order ought to have been made.

The court found that the service of the creditor's petition was valid because the debtor understood the nature of the document left near her, even though the serving party did not explicitly state its nature. The debtor had deliberately moved away from the document to avoid taking possession of it, indicating her awareness of its significance. The court also determined that the sequestration order should not have been made, as the debtor was solvent and had unencumbered assets sufficient to cover the creditor's debt. However, the court declined to annul the bankruptcy without conditions, given the debtor's failure to challenge the creditor's claim and her delay in pursuing the annulment application. The court deferred making its orders for fourteen days to allow the debtor to make appropriate arrangements for payment of outstanding fees, expenses, and the balance of the debt due to the creditor. If such arrangements were not made, the court would dismiss the application and order that the costs of the trustee and the creditor should be paid out of the debtor's estate.

Orders