Re Calderon, Kevin Roy & Ors Ex Parte The Bankrupts [1977] FCA 26

MIL eUusric)|e) FRAN |

BANKRUPTCY ACT 1966-1973 2b [1997

IN THE FEDERAL COURT OP BANKRUPTCY

BANKRUPTCY DISTRICT OP THE S'CzTE

OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY

) ) No. N.S.W. 573 or 1976 ) )

RE: KEVIN ROY CALNMROY & JUNE W17,LNE "CLDERCN Trading as © '

BRATT SCHCOL OF DAC I

Rankrunts

EX PARTE: THE BANKRUPTS

APPLICATION FOR ANNULMENT

REASONS FOR JUDGMENT

On 24 November 1976 a sequestraticn order was medv cdaainw! the estates of Kevin Roy Calderon and his wite Jure Fleine Calderon. On 9 December 1976 they filed this application dated 8 December 1976, which as amended pursuant to leave grantcd on 11 March 1977 seeks an order rescinding the sequestraticn order or alternatively an order under s. 154(1) (a) of the Bankruptcy Act 1966 annulling the bankruptcy on the ground that the creditors' petition was not served on the applicants and the sequestration order thevefore ought not to have been made. The application was oppose' by the petitioning creditors.

Section 154(1) (a), so far as it is material to this case, provides that "Where the Court is satisfied that a sequestration order ought noc to have been m2 «+. the Court may make an ocder annulling che Lankruptcy".

In fr re Dunn, (1949) Co. vio, C46 Lyershed NLR. said

"IT think Mr. Aronson as ridht sn sreing that ain judgiry wacther whe ordgor ov be co nive the Court is entatjx. to nive ractard to

State of affaires at treet agie, oP tiat, oy canwse,

-2-

May appear from evidence subseauently fiJed, and certainly would not appear from the bare statement on the formal petition, which alone was before the Court when the order was made".

In that case the question was whether an adjudication ought to be annulled. It had been made on the debtor's own petition, and the "bare statement" to which his Lordship referred was not a sworn statement but the debtor's allegation, required by s. 6 of the Bankruptcy Act 1914, in his petition that he was unable to pay his debts.