Nathan v Burness (No 2) [2011] FCA 289

FEDERAL COURT OF AUSTRALIA

Nathan v Burness (No 2) [2011] FCA 289 Citation: Nathan v Burness (No 2) [2011] FCA 289

Parties: KAILAI NATHAN v PAUL BURNESS AND MORGAN GERARD JAMES LANE AS TRUSTEES OF THE BANKRUPT ESTATE OF KAILAI NATHAN and CAPITAL FINANCE AUSTRALIA LTD (ACN 069 663 136)

File number: VID 791 of 2010

Judge: TRACEY J

Date of judgment: 31 March 2011

Catchwords: BANKRUPTCY – application for annulment of bankruptcy – default judgment said not to be obtained in a proceeding – two versions relied upon by creditor – differences between versions immaterial – creditor entitled to rely upon second version – valuation of security in creditor's petition – nil value given because true value unascertainable – not a capricious, false or excessively low valuation - petition not rendered defective – proof of debt estimated value of security interest above nil – discrepancy cannot found conclusion that sequestration order should not have been made – creditor's failure to comply with temporal requirements under Rules cannot render sequestration order one which Federal Magistrate was not bound to make – differences between characterisations of relevant agreement do not found conclusion that sequestration order should be set aside – other discretionary considerations do not support the making of an annulment

Legislation: Bankruptcy Act 1966 (Cth) ss 81, 153B Federal Court (Bankruptcy) Rules 2005 rr 4.02, 4.08

Cases cited: Biron Capital Limited v Anstee [2005] FMCA 1100 compared Boles v Official Trustee in Bankruptcy (2001) 183 ALR 239 cited Capital Finance Australia Pty Ltd v Nathan [2008] FMCA 1363 referred to Cottrell v Wilcox [2002] FCA 1115 cited Re Frank; Ex parte Piliszky (1987) 16 FCR 396 cited Re O'Leary; Ex parte Bayne (1985) 61 ALR 674 cited Re Papps; Ex parte Tapp (1997) 78 FCR 524 cited Re Williams (1968) 13 FLR 10 cited Rigg v Baker [2006] FCAFC 179 considered