Investec Australia Finance Pty Limited v Naude [2016] FCA 731

FEDERAL COURT OF AUSTRALIA

Investec Australia Finance Pty Limited v Naude [2016] FCA 731 File number: NSD 1040 of 2014

Judge: FARRELL J

Date of judgment: 20 June 2016

Catchwords: BANKRUPTCY – application for sequestration order – where creditor's petition dated 13 October 2014 relied on debtor's failure to comply with a bankruptcy notice which relied on a judgment debt – where applicant purports to be assignee of the judgment debt – where notice of assignment relates to only one of two amounts comprised in the judgment debt – where further deed of assignment executed in relation to the judgment debt – where applicant sought leave to withdraw creditor's petition dated 13 October 2014 pursuant to s 47(2) of the Bankruptcy Act 1966 (Cth) and to file a petition relying on a different act of bankruptcy being the execution by the debtor of an authority under s 188 of the Bankruptcy Act 1966 (Cth) on 25 November 2014 – where registrar made orders on 28 April 2015 granting leave to withdraw the petition and to file an amended creditor's petition – where applicant's "clean" petition rejected by registry – where applicant subsequently filed a creditor's petition dated 4 May 2015 containing marked-up changes from the original petition – where lodgement receipt issued on 5 May 2015 – whether in these circumstances the petition containing marked up amendments was "presented" within the meaning of s 44(1)(c) on 5 May 2015 – whether act of bankruptcy relied on occurred within six months before presentation of the creditor's petition for the purposes of s 44(1)(c) – whether creditor's petition has lapsed – where registrar made order on 9 October 2015 extending period before which the creditor's petition lapses to a period of 24 months without nominating the date on which the period commenced BANKRUPTCY – whether applicant was a creditor of the respondent as at 5 May 2015 – where applicant purports to be an assignee of the judgment debt – where no evidence of date on which notice of assignment of debt given to respondent debtor – where creditor's petition dated 4 May 2015 relied on execution of an authority under s 188 of the Bankruptcy Act 1966 (Cth) – consideration of the relevance of r 39.1(a) of the Uniform Civil Procedure Rules 2005 (NSW) which prohibits the issue of a writ of execution in respect of a judgment debt that has been assigned without the leave of the court BANKRUPTCY – whether grounds in notice of opposition made out – whether applicant possesses secured property of the respondent debtor – where applicant or its holding company is mortgagee in possession of properties owned by companies associated with the respondent debtor – whether "offsets" available against the judgment debt – whether appropriate to go behind the judgment