Tan & Tan Lawyers Pty Ltd, in the matter of Cristovao v Cristovao [2017] FCA 786

Tan & Tan Lawyers Pty Ltd, in the matter of Cristovao v Cristovao [2017] FCA 786

Tan & Tan proved the matters required by s 52(1) of the Bankruptcy Act 1966 (Cth), giving it a prima facie right to a sequestration order. Mr Cristovao did not establish sufficient cause under s 52(2)(b) because his pending appeal repeated the same O 9A argument already rejected by the Court of Appeal as having no reasonable prospect of success, so the appeal was not based on genuine and arguable grounds and did not justify an adjournment.

Jurisdiction
Australia
Judgment Date
13 July 2017
Procedural Posture
Bankruptcy Creditor's Petition for Sequestration Order / Hearing of Creditor's Petition and Respondent's Application to Adjourn
Outcome
Creditor's petition granted; respondent's application to adjourn rejected; sequestration order made.
Legal Topics
["creditor's Petition" 'bankruptcy Notice' 'sequestration Order' 'pending Appeal Against Judgment Debt' "adjournment of Creditor's Petition" 'sufficient Cause Under S 52(2)(b)']
['bankruptcy' 'insolvency' 'civil Procedure'] ["creditor's Petition" 'bankruptcy Notice' 'sequestration Order' 'pending Appeal Against Judgment Debt' "adjournment of Creditor's Petition" 'sufficient Cause Under S 52(2)(b)']

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Procedural Posture

Bankruptcy Creditor's Petition for Sequestration Order / Hearing of Creditor's Petition and Respondent's Application to Adjourn

Legal Issues

  1. 1 ['Whether the applicant proved the matters required by s 52(1) of the Bankruptcy Act 1966 (Cth).' 'Whether the respondent established sufficient cause under s 52(2)(b) why a sequestration order ought not be made.' "Whether the creditor's petition should be adjourned because the respondent had a pending appeal against orders connected with the judgment debt." "Whether the respondent's pending appeal was based on genuine and arguable grounds."]

Ratio Decidendi

Tan & Tan proved the matters required by s 52(1) of the Bankruptcy Act 1966 (Cth), giving it a prima facie right to a sequestration order. Mr Cristovao did not establish sufficient cause under s 52(2)(b) because his pending appeal repeated the same O 9A argument already rejected by the Court of Appeal as having no reasonable prospect of success, so the appeal was not based on genuine and arguable grounds and did not justify an adjournment.

Court Disposition

Creditor's petition granted; respondent's application to adjourn rejected; sequestration order made.

Orders

  • ['The estate of Rogerio Martins Cristovao be sequestrated under the Bankruptcy Act 1966 (Cth).' "The applicant creditor's costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act." 'The Court notes that the date of the act of bankruptcy is 24 October 2016.']