Re Poletti, L v Ex parte Australian Airlines Ltd [1995] FCA 416

CATCHWORDS BANKRUPTCY - proceedings in connection with sequestration - petition and sequestration order - creditor's petition - whether sequestration order appropriate - whether petition and bankruptcy notice duly served - whether any "substantial injustice" as a consequence of late service of trustee's consent. Bankruptcy Act 1966 s.52 Bankruptcy Rules r15(b)(iv) RE: LOUISE POLETTI EX PARTE: AUSTRALIAN AIRLINES LIMITED ACN 008 642 886 NO VP 808 OF 1994 R D NICHOLSON J MELBOURNE 9 JUNE 1995

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) GENERAL DIVISION ) NO VP 808 OF 1994 RE: LOUISE POLETTI Judgment Debtor EX PARTE: AUSTRALIAN AIRLINES LIMITED Judgment Creditor MINUTE OF ORDER JUDGE MAKING ORDER: R D NICHOLSON J DATE OF ORDER: 9 JUNE 1995 WHERE MADE: MELBOURNE THE COURT ORDERS AND DECLARES THAT: 1. A sequestration order be made against the estate of Louise Poletti otherwise known as Luigina Foster. 2. The date of commission of act of bankruptcy is 26 April 1994. 3. The trustee in bankruptcy of the estate of Louise Poletti otherwise known as Luigina Foster is Ross Duus. 4. The petitioner's costs of and incidental to the petition including reserved costs be taxed and paid in accordance with the statute. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) GENERAL DIVISION ) NO VP 808 OF 1994 RE: LOUISE POLETTI Judgment Debtor EX PARTE: AUSTRALIAN AIRLINES LIMITED Judgment Creditor CORAM: R D NICHOLSON J DATE: 9 JUNE 1995 PLACE: MELBOURNE REASONS FOR JUDGMENT R D NICHOLSON J This is the hearing of a creditor's petition in which a sequestration order is sought against the estate of the debtor. The petition relies upon the commission of an act of bankruptcy described as follows:- "[the debtor] failed either to comply on or before 25 April 1994 with the requirements of a bankruptcy notice duly served on her on 11 April 1994 or to satisfy the court that she had a counter-claim, set off or cross demand equal to or exceeding the sum specified in paragraph (a) of the bankruptcy notice." The sum so specified in the notice is the sum of $38,206.15 which, as the notice discloses, comprises the sum of $38,137.20 with interest of $68.95 calculated on that sum at the rate applicable pursuant to the Penalty Interest Rates Act 1983 (Vic) from 17 March 1994 to 22 March 1994 and described as the amount due by the debtor to the creditor under a final judgment obtained by the creditor against the debtor in the County Court of Victoria at Melbourne on 17 March 1994. In the creditor's petition, however, it is stated that the amount of the debt since the judgment has been reduced by $17,000 paid by the debtor to the petitioner so that, in the case of the petition, the statement is that the debtor is justly and truly indebted to the petitioner in the sum of $21,206.15 comprised of the amounts previously referred to less the amount received by way of credit. The first matter of which the court must be satisfied to make a sequestration order at this hearing is that the matters stated in the petition are proven. For that purpose, in accordance with s52(1)(a) of the Bankruptcy Act ("the Act") the Court may accept the affidavit verifying the petition as sufficient. Paragraphs 1, 2 and 3 of the creditor's petition are duly verified by an affidavit of Maria Pia Forgione, sworn on 8 August 1994. Paragraph 4 of the petition is duly verified by the affidavit of Mr T H Richards, sworn on 17 August 1994. The Court must also be satisfied as to the service of the petition. In light of the way this matter has developed, I turn also to the evidence of the service of the bankruptcy notice upon which the petition is founded. Before me is an affidavit of service sworn by Mr S Spidalieri on 27 April 1994 that he had personally served the bankruptcy notice upon the debtor. There is a further affidavit from the same deponent sworn on 4 November 1994 in which he testifies to having served her with a sealed copy of the creditor's petition and the related affidavits of Ms Forgione and Mr Richards by delivering those documents to her personally at her residential address. In response to the second mentioned service, the debtor caused to be lodged by solicitors in Melbourne on the record notice of her intention to appear at the hearing of the petition. In that notice she stated that the grounds of opposition to the petition were threefold, namely:-