Battenberg v Restom [2007] FCAFC 195

Battenberg v Restom [2007] FCAFC 195

The primary judge was entitled to find that the appellant was ordinarily resident in Australia on 6 June 2005. The solicitor's letter of 3 March 2005 and the appellant's Scottish notice of appeal, together with his undisputed prior Australian residence and continuing Australian connections, were evidence of continuing ordinary residence in Australia; the rejected explanations of the appellant and his solicitor did not displace that evidence. It was immaterial that the appellant may also have been ordinarily resident in London or Great Britain, because a person can be ordinarily resident in more than one place at the same time.

Jurisdiction
Australia
Judgment Date
18 December 2007
Procedural Posture
Bankruptcy Appeal From Sequestration Order / Appeal From a Single Judge of the Federal Court of Australia
Outcome
Appeal dismissed.
Legal Topics
['sequestration Order' 'act of Bankruptcy' 'ordinary Residence in Australia' 'bankruptcy Act 1966 (cth) S 43(1)' 'appellate Review of Factual Findings and Credibility Findings']
['bankruptcy'] ['sequestration Order' 'act of Bankruptcy' 'ordinary Residence in Australia' 'bankruptcy Act 1966 (cth) S 43(1)' 'appellate Review of Factual Findings and Credibility Findings']

Case Brief

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Procedural Posture

Bankruptcy Appeal From Sequestration Order / Appeal From a Single Judge of the Federal Court of Australia

Legal Issues

  1. 1 ['Whether, at the time of the alleged act of bankruptcy on 6 June 2005, the appellant was ordinarily resident in Australia for the purposes of s 43(1) of the Bankruptcy Act 1966 (Cth).' 'Whether a debtor may be ordinarily resident in more than one place at the same time.' "Whether the primary judge was entitled to rely on the 3 March 2005 solicitor's letter and the appellant's notice of appeal in Scottish proceedings as evidence that the appellant considered himself ordinarily resident in Australia."]

Ratio Decidendi

The primary judge was entitled to find that the appellant was ordinarily resident in Australia on 6 June 2005. The solicitor's letter of 3 March 2005 and the appellant's Scottish notice of appeal, together with his undisputed prior Australian residence and continuing Australian connections, were evidence of continuing ordinary residence in Australia; the rejected explanations of the appellant and his solicitor did not displace that evidence. It was immaterial that the appellant may also have been ordinarily resident in London or Great Britain, because a person can be ordinarily resident in more than one place at the same time.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' "The respondent creditors' costs, including reserved costs, to be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth)."]