Hacker v The Owners - Strata Plan No. 17572 [2005] FCA 1936

Hacker v The Owners - Strata Plan No. 17572 [2005] FCA 1936

The Debtors were not entitled to an extension of time because they had notice of the Petition, failed to act promptly, failed to cooperate with the Trustee, and alternative relief by annulment was available. However, the evidence showed it was more likely than not that the Bankruptcy Notice was not personally served on either Debtor and was not served by courier service under the Bankruptcy Regulations; therefore no act of bankruptcy occurred, the sequestration orders ought not to have been made, and the bankruptcies should be annulled under s 153B of the Bankruptcy Act 1966 (Cth).

Jurisdiction
Australia
Judgment Date
20 December 2005
Procedural Posture
Bankruptcy Proceeding / Notice of Motion for Extension of Time to Apply for Review of Sequestration Orders, Review of Sequestration Orders and Annulment of Bankruptcies
Outcome
Application for extension of time dismissed; bankruptcies annulled; costs ordered against the Debtors.
Legal Topics
['sequestration Orders' 'extension of Time' "review of Registrar's Orders" 'service of Bankruptcy Notice' 'acts of Bankruptcy' 'annulment of Bankruptcy' 'costs']
['bankruptcy and Insolvency' 'civil Procedure'] ['sequestration Orders' 'extension of Time' "review of Registrar's Orders" 'service of Bankruptcy Notice' 'acts of Bankruptcy' 'annulment of Bankruptcy' 'costs']

Case Brief

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Procedural Posture

Bankruptcy Proceeding / Notice of Motion for Extension of Time to Apply for Review of Sequestration Orders, Review of Sequestration Orders and Annulment of Bankruptcies

Legal Issues

  1. 1 ['Whether time should be extended for the Debtors to apply for review of sequestration orders made by a Registrar on 31 August 2005.' 'Whether the Bankruptcy Notice was served on either Debtor so as to found the alleged acts of bankruptcy.' 'Whether the bankruptcies should be annulled under s 153B of the Bankruptcy Act 1966 (Cth).' 'What costs orders should be made.']

Ratio Decidendi

The Debtors were not entitled to an extension of time because they had notice of the Petition, failed to act promptly, failed to cooperate with the Trustee, and alternative relief by annulment was available. However, the evidence showed it was more likely than not that the Bankruptcy Notice was not personally served on either Debtor and was not served by courier service under the Bankruptcy Regulations; therefore no act of bankruptcy occurred, the sequestration orders ought not to have been made, and the bankruptcies should be annulled under s 153B of the Bankruptcy Act 1966 (Cth).

Court Disposition

Application for extension of time dismissed; bankruptcies annulled; costs ordered against the Debtors.

Orders

  • ['The application for an extension of time for making an application for review of the sequestration orders be dismissed.' 'The bankruptcies of each of Nandor Daday and Susie Hacker be annulled.' "Nandor Daday and Susie Hacker pay the trustee's costs of the proceeding." "Nandor Daday and Susie Hacker pay 75% of the...