Re Smith, N.K. v. Ex parte Kern Corporation Ltd [1985] FCA 265

Re Smith, N.K. v. Ex parte Kern Corporation Ltd [1985] FCA 265

In the absence of contradiction from the debtor, the evidence supported the inference that he had absented himself for some time with the intention of delaying creditors, committing an act of bankruptcy under s.40(1)(c)(iii). The absence was a continuing act that persisted into the six-month period for s.44(1)(c), and s.156A(3) meant the consenting registered trustee became trustee by effect of the sequestration order.

Jurisdiction
Australia
Judgment Date
19 June 1985
Procedural Posture
Petition for a Sequestration Order / Determination of Petition
Outcome
Sequestration order made against the estate of the debtor; petitioning creditor's costs ordered to be taxed and paid in accordance with the Act.
Legal Topics
['act of Bankruptcy' 'absenting With Intent to Defeat or Delay Creditors' 'six Month Time Limit' 'registered Trustee' 'sequestration Order']
['bankruptcy'] ['act of Bankruptcy' 'absenting With Intent to Defeat or Delay Creditors' 'six Month Time Limit' 'registered Trustee' 'sequestration Order']

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Procedural Posture

Petition for a Sequestration Order / Determination of Petition

Legal Issues

  1. 1 ['Whether the debtor absented himself with intent to defeat or delay creditors within the meaning of s.40(1)(c)(iii) of the Bankruptcy Act 1966.' 'Whether absenting oneself is a continuous act for the purposes of the six-month time limit in s.44(1)(c) of the Bankruptcy Act 1966.' "Whether the Court had a discretion not to have the consenting registered trustee act as trustee of the debtor's estate."]

Ratio Decidendi

In the absence of contradiction from the debtor, the evidence supported the inference that he had absented himself for some time with the intention of delaying creditors, committing an act of bankruptcy under s.40(1)(c)(iii). The absence was a continuing act that persisted into the six-month period for s.44(1)(c), and s.156A(3) meant the consenting registered trustee became trustee by effect of the sequestration order.

Court Disposition

Sequestration order made against the estate of the debtor; petitioning creditor's costs ordered to be taxed and paid in accordance with the Act.

Orders

  • ['I find that the debtor has committed the act of bankruptcy specified in s.40(1)(c)(iii) of the Act, in that he has absented himself with intent to defeat or delay his creditors.' 'I am satisfied of proof of the other matters of which the Act requires proof.' 'I notice that Mr R.J.F. Burns, a registered trustee,...