Boles, Re [2000] FCA 1782

FEDERAL COURT OF AUSTRALIA

Boles, Re [2000] FCA 1782 BANKRUPTCY – Annulment – Application made on basis that Court lacked jurisdiction to make sequestration order – Bankrupt departed Australia shortly before date of commission of act of bankruptcy – Whether bankrupt was "ordinarily resident" in Australia at that date – Whether bankrupt had a "dwelling-house" in Australia at that date – Eight year delay in making application – Destructionin that period of bank records relevant to question whether bankrupt was "carrying on business in Australia … by means of an agent" at date of commission of act of bankruptcy – Applicant failed to demonstrate that sequestration order ought not to have been made. Bankruptcy Act 1966 ss 43(1), 153B Re IAN JOHN BOLES N7144 of 2000 WILCOX J SYDNEY 13 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY N7144 of 2000

RE: IAN JOHN BOLES

JUDGE: WILCOX J

DATE OF ORDER: 13 DECEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for annulment made on 21 February 2000 be dismissed.

2. The applicant, Ian John Boles, pay the costs of the application incurred by the Official Trustee in Bankruptcy.

Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY N7144 of 2000

RE: IAN JOHN BOLES

JUDGE: WILCOX J

DATE: 13 DECEMBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 WILCOX J: This is an application by Ian John Boles for annulment of a sequestration order made against him on 3 December 1991. 2 Mr Boles brings his application under s153B of the Bankruptcy Act 1966. That section reads: "153B. If the Court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor's petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver, the Court may make an order annulling the bankruptcy." 3 Mr Boles contends the sequestration order ought not to have been made because the Court lacked jurisdiction to make the order. His argument is that none of the situations described in para (b) of s43(1) of the Act applied to him. Section 43(1) provides: "43.(1) Subject to this Act, where: (a) a debtor has committed an act of bankruptcy; and (b) at the time when the act of bankruptcy was committed, the debtor: (i) was personally present or ordinarily resident in Australia; (ii) had a dwelling-house or place of business in Australia; (iii) was carrying on business in Australia, either personally or by means of an agent or manager; or (iv) was a member of a firm or partnership carrying on business in Australia by means of a partner or partners or of an agent or manager; the Court may, on a petition presented by a creditor, make a sequestration order against the estate of the debtor."