Holbrook v Risinger [1999] FCA 1486

FEDERAL COURT OF AUSTRALIA Holbrook v Risinger [1999] FCA 1486

BANKRUPTCY - application for a summary sequestration order – debtor's position improved from date of signing s 188 authority - debtor paid in full or made satisfactory arrangements with all remaining creditors with the exception of one disputed creditor - whether an adjournment should be granted - whether the Court should exercise discretion to make summary sequestration order.

Bankruptcy Act 1966, ss 120, 221(1)(c)

Sandell v Porter (1966) 115 CLR 666

Robson v Ingrilli (unreported, Federal Court of Australia, 2 October 1998)

Re Sarina (1980) 32 ALR 596

Re Stubberfield (1994) 134 ALR 169

Re Williamson (1980) 43 FLR 305

Re Beames (1985) 7 FCR 216)

Re Driller [1970] ALR 217)

Re Flew [1905] 1 KB 278

KIM DAVID HOLBROOK v JOHN ERNEST RISINGER

W7093 of 1999

BOON JR

28 OCTOBER 1999

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W7093 OF 1999

BETWEEN: KIM DAVID HOLBROOK

Applicant

AND: JOHN ERNEST RISINGER

Respondent

COURT: BOON JR

DATE OF ORDER: 28 OCTOBER 1999

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1 The application for an adjournment is dismissed. 2 The application for a sequestration order is dismissed. 3 The question of costs is reserved. 4 There be liberty to apply Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W7093 OF 1999

BETWEEN: KIM DAVID HOLBROOK

Applicant

AND: JOHN ERNEST RISINGER

Respondent

COURT: BOON JR

DATE: 28 OCTOBER 1999

PLACE: PERTH

REASONS FOR JUDGMENT Background: 1 This matter has been referred to me pursuant to Order 79 rule 3 of the Federal Court Rules. 2 The applicant, Mr Kim Holbrook, has applied that the estate of the respondent, Mr John Risinger, be sequestrated pursuant to s 221(1)(c) of the Bankruptcy Act 1966 ("the Act"). 3 The matter came before me for hearing on 13 September 1999. On that date the respondent sought an adjournment to enable him to adduce new evidence regarding the state of his affairs. An adjournment was granted. 4 The matter came before me again on 5 October 1999. The applicant and the respondent were represented by counsel. Further, Ms H Sobotnik appeared for Mr S MacDonald, who alleges he is a creditor of Mr Risinger. At the hearing, both Mr Carles who appeared for the applicant and Ms Sobotnik argued that either a sequestration order be made or that the matter be adjourned to enable further evidence and submissions to be filed on behalf of Mr MacDonald. Mr Aristei on behalf of the respondent argued that the matter should not be further adjourned and that the application should be dismissed. 5 The issues in this case are therefore whether the matter should be adjourned, or, if not, whether a sequestration order should be made. On behalf of the respondent it was also argued that Mr Holbrook does not have standing to bring the application as he is no longer the "controllingtrustee"because he is functus officio.