ACW v Du Bray (No 2) [2020] FCA 994

ACW v Du Bray (No 2) [2020] FCA 994

The creditor's petition was properly verified because the applicant's solicitor had sufficient knowledge of the relevant facts from acting in the relevant proceedings and could verify the petition on information and belief. The respondent did not show substantial reasons to question whether a real debt lay behind the substantive New Zealand judgment or any other judgment or order relied on; the apprehended bias allegations, the fact of debarring, and the complaints about valuation findings and Mr Vella's report had no merit. The respondent also failed to establish solvency or any other sufficient cause under s 52(2)(b). The matters required by s 52 of the Bankruptcy Act 1966 (Cth) were...

Jurisdiction
Australia
Judgment Date
16 July 2020
Procedural Posture
Creditor's Petition for a Sequestration Order Under the Bankruptcy Act 1966 (cth) / Final Determination of Opposed Creditor's Petition
Outcome
Creditor's petition granted; sequestration order made against the estate of Lee Francis Du Bray.
Legal Topics
["creditor's Petition" 'sequestration Order' "verification of Creditor's Petition" 'going Behind a Judgment Debt' 'registered New Zealand Judgments' 'apprehended Bias' 'other Sufficient Cause']
['bankruptcy and Insolvency'] ["creditor's Petition" 'sequestration Order' "verification of Creditor's Petition" 'going Behind a Judgment Debt' 'registered New Zealand Judgments' 'apprehended Bias' 'other Sufficient Cause']

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Procedural Posture

Creditor's Petition for a Sequestration Order Under the Bankruptcy Act 1966 (cth) / Final Determination of Opposed Creditor's Petition

Legal Issues

  1. 1 ["Whether the creditor's petition was properly verified by a person who knew the relevant facts as required by s 47(1) of the Bankruptcy Act 1966 (Cth)." 'Whether the Court should go behind the judgments or orders relied on by the applicant to investigate whether the debts were owing.' 'Whether the substantive New Zealand judgment was tainted by apprehended bias or otherwise unreliable because the respondent was debarred from participating in the final hearing.' 'Whether there was other sufficient cause under s 52(2)(b) of the Bankruptcy Act 1966 (Cth) why a sequestration order ought not be made.' 'Whether the requirements for making a sequestration order under s 52 of the Bankruptcy Act 1966 (Cth) were satisfied.']

Ratio Decidendi

The creditor's petition was properly verified because the applicant's solicitor had sufficient knowledge of the relevant facts from acting in the relevant proceedings and could verify the petition on information and belief. The respondent did not show substantial reasons to question whether a real debt lay behind the substantive New Zealand judgment or any other judgment or order relied on; the apprehended bias allegations, the fact of debarring, and the complaints about valuation findings and Mr Vella's report had no merit. The respondent also failed to establish solvency or any other sufficient cause under s 52(2)(b). The matters required by s 52 of the Bankruptcy Act 1966 (Cth) were...

Court Disposition

Creditor's petition granted; sequestration order made against the estate of Lee Francis Du Bray.

Orders

  • ['A sequestration order under the Bankruptcy Act 1966 (Cth) be made against the estate of Lee Francis Du Bray.' 'The costs of the applicant be assessed by a Registrar of the Federal Court of Australia and be paid from the bankrupt estate of Lee Francis Du Bray in accordance with the Bankruptcy Act 1966 (Cth).']