Goodman v Westpac Banking Corporation [2011] FCA 777

FEDERAL COURT OF AUSTRALIA

Goodman v Westpac Banking Corporation [2011] FCA 777 Citation: Goodman v Westpac Banking Corporation [2011] FCA 777

Appeal from: Westpac Banking Corporation v Goodman [2010] FMCA 993

Parties: MORRIS GOODMAN v WESTPAC BANKING CORPORATION

File number: VID 51 of 2011

Judge: NORTH J

Date of judgment: 1 July 2011

Date of hearing: 1 July 2011

Place: Melbourne

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 32

Counsel for the Appellant: The Appellant appeared in person

Counsel for the Respondent: Mr C Nichol

Solicitor for the Respondent: Gadens Lawyers

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 51 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MORRIS GOODMAN

Appellant

AND: WESTPAC BANKING CORPORATION

Respondent

JUDGE: NORTH J DATE OF ORDER: 1 JULY 2011 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 51 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MORRIS GOODMAN

Appellant

AND: WESTPAC BANKING CORPORATION

Respondent

JUDGE: NORTH J DATE: 1 JULY 2011 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Before the Court is an appeal by Morris Goodman, the appellant, against orders made by Turner FM on 17 December 2010. The federal magistrate made a sequestration order against the estate of Mr Goodman on the application of the respondent, Westpac Banking Corporation (the Bank). 2 The statutory provisions applicable to this appeal are ss 52(1) and (2) of the Bankruptcy Act 1966 (Cth) (the Act), which relevantly provide: (1) At the hearing of a creditor's petition, the Court shall require proof of: (a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient); (b) service of the petition; and (c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing; and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor. … (2) If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor: (a) that he or she is able to pay his or her debts; or (b) that for other sufficient cause a sequestration order ought not to be made; it may dismiss the petition. 3 Section 40(1)(g) of the Act relevantly provides: (1) A debtor commits an act of bankruptcy in each of the following cases: … (g) if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not: (i) where the notice was served in Australia--within the time specified in the notice; or (ii) where the notice was served elsewhere--within the time fixed for the purpose by the order giving leave to effect the service; comply with the requirements of the notice or satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;