Re Nath, Atish Prem (a.k.a. Atish Premnath Rathore); Ex Parte Ghysels, Carla [1996] FCA 173

Federal Court of Australia

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C A T C H W O R D S BANKRUPTCY - proceedings in connection with sequestration - creditor's petition - service of petition. BANKRUPTCY - proceedings in connection with sequestration - acts of bankruptcy - failure to comply with bankruptcy notice - bankruptcy notice - whether installment order a final judgment or final order. Magistrates Courts Rules 1960 (Queensland) r 198(9) Bankruptcy Act 1966 - ss 40(1), 44, 52 Re Seckold (1933) 5 ABC 195 Re Agrillo (1977) 29 FLR 484 Re Padagas; ex parte Carrier Air Conditioning Pty Ltd (1977) 30 FLR 170 Re Florance; ex parte Turimetta Properties Pty Ltd (1979) 36 FLR 256 RE: ATISH PREM NATH (a.k.a. Atish Premnath Rathore) (Debtor); EX PARTE: CARLA GHYSELS (Petitioning Creditor) No. QP 160 of 1995 SPENDER J BRISBANE 20 FEBRUARY 1996

IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ) No. QP 160 of 1995 BANKRUPTCY DISTRICT OF THE ) STATE OF QUEENSLAND ) RE: ATISH PREM NATH (a.k.a. Atish Premnath Rathore) Debtor EX PARTE: CARLA GHYSELS Petitioning Creditor MINUTES OF ORDER JUDGE MAKING ORDER: Spender J DATE OF ORDER: 20 February 1996 WHERE MADE: Brisbane THE COURT ORDERS THAT: 1. The name of the debtor in the petition is to be amended by the addition of the words "also known as Atish Premnath Rathore". 2. A sequestration order be made against the estate of the debtor. 2. The petitioning creditor's costs of and incidental to the petition, including reserved costs, be taxed and paid in accordance with the Bankruptcy Act 1966. NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ) No. QP 160 of 1995 BANKRUPTCY DISTRICT OF THE ) STATE OF QUEENSLAND ) RE: ATISH PREM NATH (a.k.a. Atish Premnath Rathore) Debtor EX PARTE: CARLA GHYSELS Petitioning Creditor CORAM: Spender J DATE: 20 February 1996 PLACE: Brisbane REASONS FOR JUDGMENT This is a contested creditor's petition. It is unusual in one respect, in that the debtor, Atish Prem Nath, has indicated that yesterday he was minded to present his own debtor's petition, but today opposes the making of a sequestration order on the petition of the petitioning creditor. He does so on three grounds. In a notice of intention to oppose the making of a sequestration order filed 23 May 1995, Mr Nath advanced two grounds: first, that he was undertaking steps to have the judgment debt on which the petition is based set aside on appeal, and secondly, the petition was not duly served in accordance with the requirements of the Bankruptcy Act 1966 ('the Act'). So far as the first round was concerned, it seems that Mr Nath applied for leave to appeal in respect of the judgment debt on which the petition is based, but that that application for leave was unsuccessful. Three bases are now put forward by Mr Nath in connection with his opposition to the making of a sequestration order. The first is based on an extract of his entry of birth which shows his name as Atish Prem Nath Rathore, showing his place of birth as Nasori, Fiji, and his date of birth as 7 December 1950. The disconformity between the name which appears on his entry of birth and in the petition really has little significance when regard is had to the fact that the name by which Mr Nath filed his intention to oppose is Atish Prem Nath, and an affidavit filed on 7 June 1995, by Mr Nath, uses that same name as appears in the creditor's petition. In addition, it is the same name which appears in the judgment on which the petition is founded and in the bankruptcy notice. It is plain therefore that whatever may be the name recorded in his entry of birth, Mr Nath is known as and has used himself the name Atish Prem Nath. There is nothing in this aspect of the matter. The two further grounds on which Mr Nath relies are the claim which was advanced in May of last year that the petition was not duly served; and secondly, that as a result of an instalment order made yesterday, 19 February, the sequestration order ought not to be made.

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IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ) No. QP 160 of 1995 BANKRUPTCY DISTRICT OF THE ) STATE OF QUEENSLAND ) RE: ATISH PREM NATH (a.k.a. Atish Premnath Rathore) Debtor EX PARTE: CARLA GHYSELS Petitioning Creditor MINUTES OF ORDER JUDGE MAKING ORDER: Spender J DATE OF ORDER: 20 February 1996 WHERE MADE: Brisbane THE COURT ORDERS THAT: 1. The name of the debtor in the petition is to be amended by the addition of the words "also known as Atish Premnath Rathore". 2. A sequestration order be made against the estate of the debtor. 2. The petitioning creditor's costs of and incidental to the petition, including reserved costs, be taxed and paid in accordance with the Bankruptcy Act 1966. NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ) No. QP 160 of 1995 BANKRUPTCY DISTRICT OF THE ) STATE OF QUEENSLAND ) RE: ATISH PREM NATH (a.k.a. Atish Premnath Rathore) Debtor EX PARTE: CARLA GHYSELS Petitioning Creditor CORAM: Spender J DATE: 20 February 1996 PLACE: Brisbane REASONS FOR JUDGMENT This is a contested creditor's petition. It is unusual in one respect, in that the debtor, Atish Prem Nath, has indicated that yesterday he was minded to present his own debtor's petition, but today opposes the making of a sequestration order on the petition of the petitioning creditor. He does so on three grounds. In a notice of intention to oppose the making of a sequestration order filed 23 May 1995, Mr Nath advanced two grounds: first, that he was undertaking steps to have the judgment debt on which the petition is based set aside on appeal, and secondly, the petition was not duly served in accordance with the requirements of the Bankruptcy Act 1966 ('the Act'). So far as the first round was concerned, it seems that Mr Nath applied for leave to appeal in respect of the judgment debt on which the petition is based, but that that application for leave was unsuccessful. Three bases are now put forward by Mr Nath in connection with his opposition to the making of a sequestration order. The first is based on an extract of his entry of birth which shows his name as Atish Prem Nath Rathore, showing his place of birth as Nasori, Fiji, and his date of birth as 7 December 1950. The disconformity between the name which appears on his entry of birth and in the petition really has little significance when regard is had to the fact that the name by which Mr Nath filed his intention to oppose is Atish Prem Nath, and an affidavit filed on 7 June 1995, by Mr Nath, uses that same name as appears in the creditor's petition. In addition, it is the same name which appears in the judgment on which the petition is founded and in the bankruptcy notice. It is plain therefore that whatever may be the name recorded in his entry of birth, Mr Nath is known as and has used himself the name Atish Prem Nath. There is nothing in this aspect of the matter. The two further grounds on which Mr Nath relies are the claim which was advanced in May of last year that the petition was not duly served; and secondly, that as a result of an instalment order made yesterday, 19 February, the sequestration order ought not to be made.

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