Re Estate of Nashat Gamali Ex Parte Gamali, Walid v Victorian WorkCover Authority [1997] FCA 636

CATCHWORDS

BANKRUPTCY - bankruptcy notice - judgment obtained by Accident Compensation Commission against debtor for compensation after fraudulently obtaining a payment under Accident Compensation Act 1985 (Vic) - whether final order - bankruptcy notice issued by Victorian WorkCover Authority, successor in law to Accident Compensation Commission - whether misleading

Bankruptcy Act 1966 (Cth) s 40(1)(g)

Re Borg (1965) Arg 926

Re Gibbs; ex parte Trescott (1995) 133 ALR 718 Re Hanson; ex parte Hanson (1985) 4 FRC 59

Re: Estate of Nashat Gamali ex parte: Walid Gamali v Victorian WorkCover Authority

No. VB 3136 of 1996

JUDGE: HEEREY J

PLACE: MELBOURNE

DATED: 15 JULY 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VB 3136 of 1996 ) GENERAL DIVISION )

BETWEEN: ESTATE OF NASHAT GAMALI

RE: Debtor

EX PARTE: WALID GAMALI

Applicant - and -

VICTORIAN WORKCOVER AUTHORITY

Respondent

JUDGE: HEEREY J PLACE: MELBOURNE DATED: 15 JULY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed with costs, including reserved costs.

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 ) VB 3136 of 1996 ) GENERAL DIVISION )

BETWEEN: RE: ESTATE OF NASHAT GAMALI

Debtor EX PARTE: WALID GAMALI

Applicant - and -

VICTORIAN WORKCOVER AUTHORITY

Respondent

JUDGE: HEEREY J PLACE: MELBOURNE DATED: 15 JULY 1997

REASONS FOR JUDGMENT The applicant seeks a review of an order made by Registrar Wood on 15 October 1996 sequestrating the deceased estate of Nashat Gamali. The substantive issues are whether the judgment on which the bankruptcy notice was based was a final order and whether the bankruptcy notice was misleading. Before dealing with these issues I turn to some procedural matters. First, the applicant is the son of the late Nashat Gamali (the deceased) who died on 17 April 1996. The widow of the deceased, and mother of the applicant, is still alive and is the next of kin. She has returned to Egypt. There is no legal personal representative of the estate, however the applicant has responsibility within the family for the administration of his father's affairs. The Registrar on 8 August 1996 made an order for service of the petition on the applicant for the purposes of s 244(9)(g) of the Act. In my opinion, the applicant is a person within the meaning of s 303 of the Act who is "aggrieved by or interested in ... the matter". Secondly, the applicant seeks an extension of time under s 31A(6) of the Act. The relevant time expired 21 days after 15 October 1996 (Rule 119A). Some delay was caused in obtaining legal advice. But the extent of delay is not substantial. No prejudice is alleged. I think leave should be granted. Facts On 7 May 1993 in the Magistrates' Court of Victoria at Box Hill the deceased was convicted under s 248 of the Accident Compensation Act 1985 (Vic) of the offence of fraudulently obtaining a payment under that Act on or about 18 February 1990. The certified extract from the court register names the "Informant, Plaintiff or Complainant" as Kolotylo, Stephen Accident Compensation Commission. The deceased was ordered to pay compensation of $19,250 and costs of $2,846 and placed on a community service order. On 16 February 1996 a bankruptcy notice was issued against the deceased. The judgment creditor named in the bankruptcy notice was "Victorian WorkCover Authority". The bankruptcy notice commenced Whereas Victorian WorkCover Authority of Level 3, 285 Latrobe Street Melbourne in the State of Victoria (hereinafter referred to as the judgment creditor) ... The petition was served on the applicant on 15 June 1996 and after an adjournment on 8 August a sequestration order made against the estate of the deceased on 15 October. Whether a Final Order The order of the Magistrates' Court was made under s 86(1) of the Sentencing Act 1991 (Vic) which provides: If a Court finds a person guilty of, or convicts a person of, an offence it may, on the application of a person suffering loss or destruction of, or damage to, property as a result of the offence, order the offender to pay any compensation for the loss, destruction or damage (not exceeding the value of the property lost, destroyed or damaged) that the Court thinks fit.