Komba trading as Bora Homes Australia v AIM Site Hire Pty Ltd [2013] FCA 23

FEDERAL COURT OF AUSTRALIA

Komba trading as Bora Homes Australia v AIM Site Hire Pty Ltd [2013] FCA 23 Citation: Komba trading as Bora Homes Australia v AIM Site Hire Pty Ltd [2013] FCA 23

Appeal from: Komba v AIM Site Hire Pty Ltd [2011] FMCA 401

Parties: EMERALD DAVID KOMBA TRADING AS BORA HOMES AUSTRALIA v AIM SITE HIRE PTY LTD (ACN 113 725 483), CLYDE PETER WHITE IN HIS CAPACITY AS THE JOINT AND SEVERAL TRUSTEE IN BANKRUPTCY OF THE ESTATE OF EMERALD DAVID KOMBA and DAVID CHARLES QUIN IN HIS CAPACITY AS THE JOINT AND SEVERAL TRUSTEE IN BANKRUPTCY OF THE ESTATE OF EMERALD DAVID KOMBA

File number: VID 641 of 2011

Judge: KENNY J

Date of judgment: 25 January 2013

Catchwords: BANKRUPTCY AND INSOLVENCY — application to set aside sequestration order — appeal from Federal Magistrates Court — where sequestration order based on default judgment in Magistrates' Court of Victoria — whether Federal Magistrate should have exercised discretion to go behind default judgment — whether proceedings in state Magistrates' Court dismissing applications for rehearing disclosed unfairness to appellant or reasonable apprehension of bias — whether there was a bona-fide allegation that no debt lay behind the default judgment — appeal dismissed. Held: (1) No unfairness or reasonable apprehension of bias is disclosed in the proceedings in the state Magistrates' Court; (2) the appellant failed to establish any bona-fide allegation that no real debt lay behind the default judgment; and (3) no relevant error is shown in the Federal Magistrate's refusal to go behind the default judgment.

Legislation: Federal Court of Australia Act 1976 (Cth) Magistrates' Court Act 1989 (Vic) Magistrates' Court (Judicial Registrars) Rules 2005 (Vic) Partnership Act 1958 (Vic) Bankruptcy Act 1966 (Cth)