ANZ Banking Group Ltd v Elferkh [1999] FCA 1049

FEDERAL COURT OF AUSTRALIA

ANZ Banking Group Ltd v Elferkh [1999] FCA 1049

BANKRUPTCY – creditor's petition – whether sequestration order would be futile – whether unsigned creditor's petition a nullity – whether absence of signature merely a formal defect or irregularity – whether appropriate to permit creditor to sign petition at the hearing

Bankruptcy Act 1966 (Cth), s52(2), s47(1A), s306 Federal Court Rules, Order 77 rule 16(1), Order 77 rule 16(2)

Radich v Bank of New Zealand (1993) 116 ALR 676, cited Re Betts; ex parte Betts [1897] 1 QB 50, referred to Re Taylor; ex parte Ryan (1986) 14 FCR 472, not followed Deputy Commissioner of Taxation (Vic) v Boxshall (1988) 83 ALR 175, referred to Re Barry (1862) 1 W&W (IE&M) 174, cited Russell v ANZ Banking Group Ltd (1987) 14 FCR 72, cited Re a Debtor (No.3 of 1902); ex parte Petitioning Creditors (1902) 86 LT 688, referred to

ANZ BANKING GROUP LTD v ADEL ELFERKH NG8444 OF 1998

EMMETT J 22 JULY 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 8444 OF 1998

IN THE MATTER OF ADEL ELFERKH

BETWEEN: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

(ACN 005 357 522)

Applicant

AND: ADEL ELFERKH (also known as EDDY ELFERKH, EDDIE ELFERKH and EDDYE ELFERKH)

Respondent

JUDGE: EMMETT J

DATE OF ORDER: 22 JULY 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Leave be given to the Applicant Creditor's solicitor to sign the petition. 2. A sequestration order be made against the estate of Adel Elferkh. 3. The Applicant Creditor's costs, other than the costs of 22 July 1999, (including reserved costs, if any) be taxed and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966. THE COURT NOTES THAT: 4. The date of the act of bankruptcy is 31 July 1998. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.