INSOLVENCY SUMMER 2009/10. INSOLVENCY SUMMER 2009/2010 CREDITORS’ PETITIONS Jurisdiction to make a sequestration order - s 43 [Nichols 147]s 43 Necessary.

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Presentation transcript:

INSOLVENCY SUMMER 2009/10

INSOLVENCY SUMMER 2009/2010 CREDITORS’ PETITIONS Jurisdiction to make a sequestration order - s 43 [Nichols 147]s 43 Necessary elements - s 43 [Nichols 147]s 43 a debt of more than $2,000 payable immediately or at some future time act of bankruptcy committed within 6 months of presentation of petition provisions re secured creditors Formal requirements - s 47 [Nichols 157]s 47 Prescribed form - Form 6 [Nichols 903]Form 6

INSOLVENCY SUMMER 2009/2010 CREDITORS’ PETITIONS Change of petitioners - s 49 [Nichols 49]s 49 Proceedings on a petition - s 52 [Nichols 164]s 52 Going behind the judgment Wren v Mahony 126 CLR 212 Udovenko v Mitchell 79 FCR 418 Unable to pay debts as they fall due Sandell v Porter 115 CLR 666 at 670 [covered in Lecture 1]Sandell v Porter 115 CLR 666 at 670

INSOLVENCY SUMMER 2009/2010 CREDITORS’ PETITIONS Other sufficient cause cross claim against creditor futility of bankruptcy improper purpose - Rozenbee v Kronhill 95 CLR 407Rozenbee v Kronhill 95 CLR 407 Adjournment of petition - s 52(3) [Nichols 165]s 52(3) Lapse of petition - s 52(4) [Nichols 165]s 52(4) Extension of life of petition - s 52(5) [Nichols 165]s 52(5) Bankrupt’s Statement Of Affairs - s 54 [Nichols 174]s 54

INSOLVENCY SUMMER 2009/2010 DEBTORS’ PETITIONS Declaration of intention to present a debtor’s petition - ss 54A - 54L [Nichols ] “frozen debt” - s 5 [Nichols 58]s 5 Presentation of petition by debtor against himself or herself - s 55 [Nichols 181]s 55 Prevention of abuse of process - BWK Elders (Australia) Pty Ltd v White [2004] FCA 1611BWK Elders (Australia) Pty Ltd v White [2004] FCA 1611 Time at which person becomes bankrupt on a debtor’s petition - s 57A [Nichols 192]s 57A

INSOLVENCY SUMMER 2009/2010 COURSE OF A HEARING Federal Court (Bankrupcy) Rules 2005 Federal Magistrates Court (Bankruptcy) Rules 2005 Harmonised Bankruptcy Rules Guide to filing a Creditor’s Petition Creditor’s Petition Checklist Federal Court Guide To Substituted Service Federal Magistrates Court Bankruptcy Practice Direction (NSW)

INSOLVENCY SUMMER 2009/2010 Next week: Lecture 4 Key dates in a bankruptcy Relation back Exempt transactions Reading: Keays, 28-31, Bankruptcy Act, ss 115,116, Nichols ,