Keenan v Skinner [1999] FCA 1011

FEDERAL COURT OF AUSTRALIA Keenan v Skinner [1999] FCA 1011

BANKRUPTCY – creditor's petition for sequestration based on debtor's failure to comply with a 21 day bankruptcy notice – creditor's claim arising from an order for costs against the debtor made in an appeal in the New South Wales Court of Appeal – certificate pursuant to section 6 of the Suitors' Fund Act 1951 – no notice of opposition to the petition nor any evidence filed by debtor – correspondence especially between parties' legal representatives being the only evidence – failure to draw debtor's attention to the fact that she was entitled to obtain the amount involved from the Suitors' Fund by application to the Fund – debtor impecunious --several adjournments, by consent, of the hearing of the petition to await payment from the Fund – interest on debt and costs of bankruptcy proceedings claimed by creditor – whether the debtor owes the creditor the amount claimed – withdrawal of debtor's solicitors from the proceedings – no assistance provided to the debtor to establish her situation and rights – next friend appointed in Supreme Court but not in Federal Court proceedings – whether service of the bankruptcy notice and creditor's petition were completed according to legal requirements – exercise of discretion under s 52(2)(b) of the Bankruptcy Act to dismiss the petition for "other sufficient cause"

Suitors' Fund Act 1951 (NSW) s 6 Bankruptcy Act 1966 s 52(1), s 52(2)(b) Federal Court Rules Order 43, rule 4(1), 4(2), 4(7), 5(2) Dowling v Colonial Mutual Life Assurance Society (1915) 20 CLR 509, referred to Cain v Whyte [1933] 48 CLR 639, followed Clyne v Deputy Commissioner of Taxation [1985] 5 FCR 1, followed Trojan v Corporation of Hindmarsh [1987] 16 FCR 37, referred to Re Svir; Ex Parte Commissioner of Taxation [1998] 83 FCR 314, followed