Boles, Re [2000] FCA 1782

Procedural Posture

Bankruptcy Application for Annulment of a Sequestration Order Under S153 B of the Bankruptcy Act 1966 / Reasons for Judgment and Final Orders Dismissing the Application

Legal Issues

1. 1 ['Whether the sequestration order ought not to have been made because the Court lacked jurisdiction under s43(1)(b) of the Bankruptcy Act 1966.' 'Whether Ian John Boles was ordinarily resident in Australia at the date of commission of the act of bankruptcy, 1 July 1991.' 'Whether Ian John Boles had a dwelling-house in Australia at 1 July 1991.' 'Whether Ian John Boles was carrying on business in Australia by means of an agent or manager at 1 July 1991.' 'Whether the applicant had negatived each jurisdictional basis in s43(1)(b) so as to satisfy the Court under s153B.']

Ratio Decidendi

Although the evidence showed that Ian John Boles was not ordinarily resident in Australia and had abandoned the Dundas property as his dwelling-house by 1 July 1991, he failed to negative the possibility that he was carrying on business in Australia by means of an agent or manager through Westpac's possession and management of Rosedale Station. Because relevant mortgage records had been destroyed during the applicant's delay in bringing the annulment application, the Court could not be satisfied under s153B that the sequestration order ought not to have been made.

Court Disposition

Application dismissed with costs.

Orders

• ['The application for annulment made on 21 February 2000 be dismissed.' 'The applicant, Ian John Boles, pay the costs of the application incurred by the Official Trustee in Bankruptcy.']