Bendeich v Andresen [2000] FCA 61

FEDERAL COURT OF AUSTRALIA

Bendeich v Andresen [2000] FCA 61 BANKRUPTCY -- validity of deed of arrangement committing debtor to present own petition or pay outstanding monies if certain conditions not met -- effect of s 188 authority empowering Trustee to call a meeting of creditors -- circumstances surrounding signing of deed and Trustee's authority -- where authority defective because procedures requiring the Trustee's consent to be witnessed not met -- deed following meeting called without valid authority also ineffective -- act of bankruptcy committed when ineffective authority signed -- whether act of bankruptcy avoided on basis that debtor did not comprehend consequences of signing authority and subsequent arrangements -- consequences of act of bankruptcy. Re Donovan; Ex parte ANZ Banking Group Ltd (1972) 20 FLR 50 approved Re Curry; Ex parte Goldsea Pty Ltd (1992) 40 FCR 32 considered Petelin v Cullen (1975) 132 CLR 355 cited Saunders v Anglia Building Society [1971] AC 1004 cited Re Moss; Ex parte Tyaraf Pty Ltd [1985] FCA 403 cited Bankruptcy Act 1966 (Cth) - ss 40(1), 188, 222, 236

GRAHAM ROSS BENDEICH v CAROLYN DOROTHY ANDRESEN

Q7283 of 1999

KIEFEL J

BRISBANE

7 FEBRUARY 2000

IN THE FEDERAL Court OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 7283 OF 1999

BETWEEN: GRAHAM ROSS BENDEICH

Applicant / Trustee

AND: CAROLYN DOROTHY ANDRESEN

Respondent / Debtor

JUDGE: KIEFEL J

DATE OF ORDER: 7 FEBRUARY 2000

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The trustee's application is dismissed.

2. It is declared that the authority signed by the debtor on 27 November 1997 was not effective for the purposes of Part X of the Bankruptcy Act 1966 (Cth).

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q7283 OF 1999