Commonwealth Development Bank of Australia Ltd v Kok, in the matter of Kok [2003] FCA 90

FEDERAL COURT OF AUSTRALIA

Commonwealth Development Bank of Australia Ltd v Kok, in the matter of Kok [2003] FCA 90 BANKRUPTCY – petition – petition for sequestration order – existence of debt – release of securities – effect of deed of release between receiver and creditor – whether release of securities for consideration released personal covenant of debtor. Bankruptcy Act 1966 (Cth)

Grant v John Grant & Sons Pty Limited (1954) 91 CLR 112 applied Grundy v Ley [1984] 2 NSWLR 467 considered IN THE MATTER OF BERNARD CORNELIS KOK; COMMONWEALTH DEVELOPMENT BANK OF AUSTRALIA LIMITED v BERNARD CORNELIS KOK NO. N 7200 OF 2002 BEAUMONT J 14 FEBRUARY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7200 OF 2002

IN THE MATTER OF: BERNARD CORNELIS KOK

BETWEEN: COMMONWEALTH DEVELOPMENT BANK OF AUSTRALIA LIMITED

APPLICANT

AND: BERNARD CORNELIS KOK

RESPONDENT

JUDGE: BEAUMONT J

DATE OF ORDER: 14 FEBRUARY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. A sequestration order is made against the estate of the respondent debtor. 2. Costs reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7200 OF 2002

IN THE MATTER OF: BERNARD CORNELIS KOK

BETWEEN: COMMONWEALTH DEVELOPMENT BANK OF AUSTRALIA LIMITED

APPLICANT

AND: BERNARD CORNELIS KOK

RESPONDENT

JUDGE: BEAUMONT J

DATE: 14 FEBRUARY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION 1 By its creditor's petition presented on 4 July 2002, Commonwealth Development Bank of Australia Limited ("the applicant creditor") has applied under s 43 of the Bankruptcy Act 1966 (Cth) ("the Act") for a sequestration order against the estate of Bernard Cornelis Kok ("the respondent debtor"). 2 The applicant creditor claims, and I am satisfied of it, that on 11 June 2002, the respondent debtor committed an act of bankruptcy by failing to comply with the requirements of a bankruptcy notice served on him on 18 May 2002 in connection with the balance of a judgment debt of $23,951.92 including interest due under a final judgment recovered in a Local Court in the sum of $27,691.36 (having allowed for the receipt of the sum of $5,000 on 12 February 2002 in the circumstances explained below). 3 The respondent debtor appeared in person and opposed the petition on one substantive ground, explained below. 4 I am satisfied that the applicant creditor has proved all formal statutory requirements. I note also that the respondent debtor has stated (and there is no dispute) that he has no assets and as an unemployed pensioner is unable to pay the judgment debt.