Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Official Receiver v Besser [2001] FCA 684
IN THE MATTER OF DANIEL RONALD BESSER OFFICIAL RECEIVER FOR AND ON BEHALF OF THE OFFICIAL TRUSTEE IN BANKRUPTCY v DANIEL RONALD BESSER N7209 of 2000 MADGWICK J 4 JUNE 2001 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N7209 of 2000
BETWEEN: OFFICIAL RECEIVER FOR AND ON BEHALF OF THE OFFICIAL TRUSTEE IN BANKRUPTCY
APPLICANT
AND: DANIEL RONALD BESSER
RESPONDENT
JUDGE: MADGWICK
DATE OF ORDER: 4 JUNE 2001
WHERE MADE: SYDNEY
THE COURT DECLARES THAT: 1. The respondent was bankrupt from 5 July 1993 until 6 August 1998 and was on 6 August 1998 discharged from bankruptcy.
THE COURT ORDERS THAT: 1. The application is dismissed. 2. The parties are to bear their own costs.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N7209 of 2000
BETWEEN: OFFICIAL RECEIVER FOR AND ON BEHALF OF THE OFFICIAL TRUSTEE IN BANKRUPTCY
APPLICANT
AND: DANIEL RONALD BESSER
RESPONDENT
JUDGE: MADGWICK
DATE: 4 JUNE 2001
PLACE: SYDNEY
REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 In this matter, the Official Receiver for and on behalf of the Official Trustee in Bankruptcy applies pursuant to s 75(5) and s 75(6) of the Bankruptcy Act 1966 (Cth) ("the Act") for the annulment of a composition and the consequent making of a sequestration order. The respondent opposes this application on three bases. 2 Firstly, the respondent claims that the resolution of creditors purportedly passed at a meeting at which over three quarters of the creditors representing over 80 per cent of the value of the debts proved in the bankruptcy, held to consider the proposal for composition, was not validly passed because the creditors were not given the notice required by Regulation 4.18 of the Bankruptcy Regulations 1996 (Cth) before the meeting. 3 Secondly, the making of a sequestration order in particular is opposed, if there were a valid and effectual composition, because the respondent had endured the status of an undischarged bankrupt for five years and would, but for the proposal for composition, have been due for discharge, and as a practical matter, have been discharged from bankruptcy on the very day on which the meeting of the creditors was held. Thirdly, it was submitted that in the exercise of the Court's discretion generally the Court should not intervene.
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