Da Vesi Construction Group Pty Ltd v De Andrade [2021] FCA 1033

Da Vesi Construction Group Pty Ltd v De Andrade [2021] FCA 1033

The requirements for a sequestration order under s 52(1) of the Bankruptcy Act 1966 (Cth) were satisfied. The applicant's costs order was not a provable debt to engage s 58(3) and there was no sufficient cause shown to refuse the order. The evidence did not establish that there was no debt truly owing behind the judgment. Arguments relating to appeal prospects or procedural defects were not made out.

Parties
Applicant: Da Vesi Construction Group Pty Ltd; Respondent: Rouba Marhaba Rebello De Andrade; Respondent (acd 51 of 2021): Nick Jim Combis in his capacity as trustee for the bankrupt estate of Roubi De Andrade
Jurisdiction
Australia
Judgment Date
17 August 2021
Procedural Posture
Creditor's Petition (bankruptcy) and Related Applications / Final Orders and Reasons for Judgment
Outcome
Sequestration order made in ACD 16 of 2021; application dismissed in ACD 51 of 2021
Legal Topics
Sequestration Order, Creditor's Petition, Costs Orders, Provable Debts, Abuse of Process, Stay of Proceedings
Bankruptcy and Insolvency Sequestration Order Creditor's Petition Costs Orders Provable Debts Abuse of Process Stay of Proceedings

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Parties

Da Vesi Construction Group Pty Ltd

Applicant

Rouba Marhaba Rebello De Andrade

Respondent

Nick Jim Combis in his capacity as trustee for the bankrupt estate of Roubi De Andrade

Respondent (acd 51 of 2021)

Procedural Posture

Creditor's Petition (bankruptcy) and Related Applications / Final Orders and Reasons for Judgment

Legal Issues

  1. 1 Whether the requirements for making a sequestration order under s 43 of the Bankruptcy Act 1966 (Cth) are satisfied
  2. 2 Whether there is sufficient cause pursuant to s 52(2) Bankruptcy Act for a sequestration order not to be made
  3. 3 Whether the Court should go behind the judgment and enquire if a debt truly exists

Ratio Decidendi

The requirements for a sequestration order under s 52(1) of the Bankruptcy Act 1966 (Cth) were satisfied. The applicant's costs order was not a provable debt to engage s 58(3) and there was no sufficient cause shown to refuse the order. The evidence did not establish that there was no debt truly owing behind the judgment. Arguments relating to appeal prospects or procedural defects were not made out.

Court Disposition

Sequestration order made in ACD 16 of 2021; application dismissed in ACD 51 of 2021

Orders

  • The estate of Rouba Marhaba Rebello De Andrade be sequestered under the Bankruptcy Act 1996 (Cth).
  • The Applicant Creditor file a long form bill of costs on or before 18 August 2021.