Symes v Holbrook [2003] FCA 96

FEDERAL COURT OF AUSTRALIA

Symes v Holbrook [2003] FCA 96 BANKRUPTCY – appeal – refusal of application for annulment of bankruptcy – whether in error of law – appellant found to have been insolvent –finding of forged debts in his name – absence of finding of value to be placed on forged debts–materiality of such evidence to determination of solvency at date of bankruptcy Bankruptcy Act 1966 (Cth) ss 5(2), 99, 99(1), 153A, 153B, Pt X

Stankiewicz v Plata (2000) FCA 1185 followed Re Coyle (1993) 42 FCR 72 discussed Re Almassy [1999] FCA 1004 discussed Re Williams [1968] 13 FLR 10 referred to Re Dunn [1949] 1 Ch 640 referred to Re Scott (1975) 6 ALR 558 explained Re Ditfort (1988) 19 FCR 347 referred to Re Gollan (1992) 40 FCR 38 referred to Edelsten v Deputy Commissioner of Taxation (NSW) (1989) 86 ALR 257 referred to Sandell v Porter (1966) 115 CLR 666 followed Borck v Williamson (1994) 49 FCR 16 referred to Craig v South Australia (1995) 184 CLR 163 applied Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 followed FREDERICK KEITH SYMES v KIM HOLBROOK W73 of 2002 RD NICHOLSON J 28 FEBRUARY 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W73 OF 2002

ON APPEAL FROM A FEDERAL MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: FREDERICK KEITH SYMES

APPELLANT

AND: KIM HOLBROOK

RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 28 FEBRUARY 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. The order of the Federal Magistrate made on 20 February 2002 be set aside. 3. The matter be remitted to the Federal Magistrate for determination in accordance with the law. 4. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.