Kebekus v Commonwealth Bank of Australia [2021] NSWSC 1633

Kebekus v Commonwealth Bank of Australia [2021] NSWSC 1633

Because the second defendant was a German company and the plaintiff had been appointed its insolvency administrator by the Local Court of Dortmund under German insolvency law, there was a sufficient connection between the second defendant and the German jurisdiction to justify recognition of the Dortmund order. Applying White v Verkouille as approved in Independent Trustee Services Ltd v Morris, the Court should lend equitable aid to the foreign order by declaring the plaintiff entitled to receive the funds in the second defendant's Commonwealth Bank account and by permitting their transmission to Germany.

Jurisdiction
Australia
Judgment Date
03 December 2021
Procedural Posture
Application by Summons for Equitable Enforcement or Recognition of a Foreign Insolvency Order / Principal Judgment on Summons
Outcome
Application granted; declaration and orders made.
Legal Topics
['foreign Judgments and Orders' 'enforcement in Equity' 'recognition of Foreign Insolvency Administrator' 'proof of Foreign Law']
['private International Law' 'equity' 'insolvency'] ['foreign Judgments and Orders' 'enforcement in Equity' 'recognition of Foreign Insolvency Administrator' 'proof of Foreign Law']

Case Brief

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Procedural Posture

Application by Summons for Equitable Enforcement or Recognition of a Foreign Insolvency Order / Principal Judgment on Summons

Legal Issues

  1. 1 ['Whether the Court should lend equitable aid to the enforcement or recognition of the German order appointing the plaintiff as insolvency administrator of the second defendant.' 'Whether there was a sufficient connection between the second defendant and the jurisdiction of the Local Court of Dortmund to justify recognition of the German order.' "Whether the plaintiff should be declared entitled to receive and transmit funds held in the second defendant's Commonwealth Bank of Australia account."]

Ratio Decidendi

Because the second defendant was a German company and the plaintiff had been appointed its insolvency administrator by the Local Court of Dortmund under German insolvency law, there was a sufficient connection between the second defendant and the German jurisdiction to justify recognition of the Dortmund order. Applying White v Verkouille as approved in Independent Trustee Services Ltd v Morris, the Court should lend equitable aid to the foreign order by declaring the plaintiff entitled to receive the funds in the second defendant's Commonwealth Bank account and by permitting their transmission to Germany.

Court Disposition

Application granted; declaration and orders made.

Orders

  • ['Declare that the plaintiff, as insolvency administrator of the second defendant appointed on 1 June 2016 in proceedings 251 in 41/16 in the Local Court of Dortmund in Germany, is entitled to receive, and to discharge the first defendant for the receipt of, all moneys standing to the credit of the bank account in...