Boensch v Somerville Legal [2021] FCAFC 79

Federal Court of Australia

Boensch v Somerville Legal [2021] FCAFC 79 Appeal from: Somerville Legal v Boensch [2019] FCCA 3637

File number: NSD 2088 of 2019

Judgment of: KATZMANN, MARKOVIC AND ABRAHAM JJ

Date of judgment: 26 May 2021

Catchwords: BANKRUPTCY – appeal from orders made by the Federal ‍Circuit Court – where primary judge made a sequestration order against appellant's estate – whether primary judge denied appellant procedural fairness – where appellant is self-represented – where primary judge did not advise appellant of his right to cross-examine – where appellant filed material with the Court – where material not before primary judge – where only single copy of material available between appellant and primary judge at hearing – where appellant required to make submissions without the benefit of his copy of the material – where no opportunity for trial judge to have fully read the appellant's material – where appellant not informed at outset of hearing of time available to make submissions – where additional time to make submissions permitted on an ad hoc basis – appeal allowed BANKRUPTCY – sequestration orders – where sequestration order made by primary judge is to be set aside – whether creditor's petition has lapsed by reason of s 52(4) of the Bankruptcy Act 1966 (Cth) – where more than 12‍ months lapsed since presentation of creditor's petition – where sequestration order made within 12 months of presentation of creditor's petition – creditor's petition has not lapsed BANKRUPTCY – application by trustees in bankruptcy for the Court to exercise its discretion to annul the appellant's bankruptcy under s ‍153B of the Bankruptcy Act 1966 (Cth) instead of setting aside the sequestration order – where trustees seek entitlement to remuneration and expenses to date under s 153B of the Bankruptcy Act 1966 (Cth) in administering the appellant's bankrupt estate – where trustees chose to intervene in appeal to advance their case but did not participate in substance of appeal – where trustees proceeded to incur costs in administering the appellant's bankrupt estate despite knowledge of this appeal – application dismissed