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Federal Court of Australia - Full Court |
Last Updated: 11 March 2009
FEDERAL COURT OF AUSTRALIA
Richmond v BMW Australia Finance Limited (No 1) [2009] FCAFC 24
Bankruptcy Act 1966 (Cth) ss 37, 188
ROSS RICHMOND v BMW AUSTRALIA
FINANCE LIMITED
NSD 1613 of 2008
BLACK CJ, JACOBSON, RARES JJ
19 FEBRUARY 2009
SYDNEY
THE COURT ORDERS THAT:
1. The application for an adjournment be refused.
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.
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NEW SOUTH WALES DISTRICT REGISTRY
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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DATE:
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PLACE:
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REASONS FOR JUDGMENT
BLACK CJ
1 The appellant, Mr Richmond, appeals against an order for sequestration made by a federal magistrate: see BMW Australia Finance Ltd v Richmond [2008] FMCA 1431. Mr Richmond has produced to the Court a document which, on the face of it, is a document for the appointment of a controlling trustee, purportedly authorised under s 188 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act). On the basis that such an authority has been given, Mr Richmond asks that the appeal be adjourned so that the procedure provided for upon the appointment of a controlling trustee can take its course. 2 The difficulty with Mr Richmond’s submission is that a sequestration order has already been made against his estate. That order is the subject of this appeal. 3 Under s 37(1) of the Bankruptcy Act, the Court may suspend the operation of an order made under that Act but s 37(2) makes it plain that the Court does not have power to suspend the operation of a sequestration order. It is for this reason that the order made by Rares J on 16 October 2008 was an order to stay, until a further order, all proceedings under the sequestration order made by the Federal Magistrates Court against the appellant. Although its operation is stayed, the sequestration order itself remains. 4 Under s 188 of the Bankruptcy Act, a debtor who desires to have his or her affairs dealt with without his or her estate being sequestrated may appoint a controlling trustee. Ex hypothesi, Mr Richmond’s estate having been sequestrated (albeit proceedings having been stayed), s 188 can have no operation. Accordingly, the giving of authority to the controlling trustee had no effect. It therefore follows that there is no basis on that ground for the appeal to be adjourned and it should proceed.
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I certify that the preceding four (4) numbered paragraphs are a true copy
of the Reasons for Judgment herein of the Honourable Chief
Justice Black.
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Associate:
Dated: 10 March 2009
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IN THE FEDERAL COURT OF AUSTRALIA
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NEW SOUTH WALES DISTRICT REGISTRY
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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DATE:
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PLACE:
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REASONS FOR JUDGMENT
JACOBSON J
5 I agree that the adjournment should not be granted for the reasons given by the Chief Justice.
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I certify that the preceding one (1) numbered paragraph is a true copy of
the Reasons for Judgment herein of the Honourable Justice
Jacobson.
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Associate:
Dated: 10 March 2009
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IN THE FEDERAL COURT OF AUSTRALIA
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NEW SOUTH WALES DISTRICT REGISTRY
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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DATE:
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PLACE:
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REASONS FOR JUDGMENT
RARES J
6 I also agree with the reasons given by the Chief Justice and the order he proposes.
Associate:
Dated: 10
March 2009
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Counsel for the Respondent:
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Mr R J Carruthers and Mr D C Price
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Solicitor for the Respondent:
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Bartier Perry
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/24.html