Diab v McDonald (No 2) [2007] FCA 616

FEDERAL COURT OF AUSTRALIA

Diab v McDonald (No 2) [2007] FCA 616 MOHAMMED DIAB v GEOFFREY DAVID MCDONALD AND ANOR NSD 2051 OF 2006

RARES J

28 MARCH 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2051 OF 2006

BETWEEN: MOHAMMED DIAB

Applicant

AND: GEOFFREY DAVID MCDONALD

First Respondent

COMMONWEALTH BANK OF AUSTRALIA

Second Respondent

JUDGE: RARES J DATE OF ORDER: 28 MARCH 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed with costs. 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 NSD 2051 OF 2006

BETWEEN: MOHAMMED DIAB

Applicant

AND: GEOFFREY DAVID MCDONALD

First Respondent

COMMONWEALTH BANK OF AUSTRALIA

Second Respondent

JUDGE: RARES J

DATE: 28 MARCH 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 Mohammed Diab was made bankrupt when a Registrar of the Court made a sequestration order against his estate on 23 February 2006 on the petition of the Commonwealth Bank of Australia, which is the second respondent in the proceedings. Ultimately, Mr Geoffrey McDonald became appointed to the office of trustee of Mr Diab's bankrupt estate. 2 On 20 October 2006, Mr Diab applied for an order that the sequestration order be annulled under s 153B of the Bankruptcy Act 1966 (Cth). Alternatively, he applied for an order of review of the registrar's decision under s 35A of the Federal Court of Australia Act 1976 (Cth) and an extension of time in which that application might be made. He sought that in the event that the review were successful the orders made on 23 February 2006 be set aside and, in lieu, that the petition be dismissed and the bankruptcy notice or service of the bankruptcy notice upon which it was founded be set aside.