Restom v Battenberg [2007] FCA 46

Restom v Battenberg [2007] FCA 46

The applicants proved that, as at 6 June 2005, the respondent was ordinarily resident in Australia for s 43(1)(b)(i) of the Bankruptcy Act 1966 (Cth). Although he was not physically in Australia and had begun moving to Britain, the transition from ordinary residence in Australia to ordinary residence in Britain was not complete; documents prepared or adopted by him in early 2005, together with his continuing Australian ties, showed he retained ordinary residence in Australia. The bankruptcy notice was deemed served, the time for compliance was extended to 6 June 2005, the respondent did not comply, and the act of bankruptcy and other matters in the creditors' petition were established.

Jurisdiction
Australia
Judgment Date
06 February 2007
Procedural Posture
Creditors' Petition for a Sequestration Order Under S 43 of the Bankruptcy Act 1966 (cth) / Judgment After Hearing
Outcome
Sequestration order made against the estate of the respondent, with applicants' and supporting creditors' costs to be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).
Legal Topics
["creditors' Petition" 'sequestration Order' 'act of Bankruptcy' 'ordinary Residence in Australia' 'jurisdiction Under S 43 of the Bankruptcy Act 1966 (cth)']
['bankruptcy'] ["creditors' Petition" 'sequestration Order' 'act of Bankruptcy' 'ordinary Residence in Australia' 'jurisdiction Under S 43 of the Bankruptcy Act 1966 (cth)']

Case Brief

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Procedural Posture

Creditors' Petition for a Sequestration Order Under S 43 of the Bankruptcy Act 1966 (cth) / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the respondent was ordinarily resident in Australia within the meaning of s 43(1)(b)(i) of the Bankruptcy Act 1966 (Cth) at the time of the alleged act of bankruptcy on 6 June 2005.' "Whether the applicants established the matters necessary for a sequestration order on the creditors' petition."]

Ratio Decidendi

The applicants proved that, as at 6 June 2005, the respondent was ordinarily resident in Australia for s 43(1)(b)(i) of the Bankruptcy Act 1966 (Cth). Although he was not physically in Australia and had begun moving to Britain, the transition from ordinary residence in Australia to ordinary residence in Britain was not complete; documents prepared or adopted by him in early 2005, together with his continuing Australian ties, showed he retained ordinary residence in Australia. The bankruptcy notice was deemed served, the time for compliance was extended to 6 June 2005, the respondent did not comply, and the act of bankruptcy and other matters in the creditors' petition were established.

Court Disposition

Sequestration order made against the estate of the respondent, with applicants' and supporting creditors' costs to be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).

Orders

  • ['The estate of Andrew Charles Robert Edward Albert Battenberg be sequestrated.' "The applicant creditors' costs, including any reserved costs, and any costs of the supporting creditors, be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth)."]