A&S Powerseller Pty Ltd v Kovacic

FEDERAL COURT OF AUSTRALIA

A&S Powerseller Pty Ltd v Kovacic [2020] FCA 459

File number:

VID 1287 of 2019

Judge:

KERR J

Date of judgment:

7 April 2020

Date of publication of reasons:

8 April 2020

Catchwords:

BANKRUPTCY AND INSOLVENCY – application for review of Registrar’s decision to make sequestration order – whether “other sufficient cause” under s 52(2) of the Bankruptcy Act 1966 (Cth) for dismissing creditor’s petition – no “other sufficient cause” established – application dismissed

Legislation:

Bankruptcy Act 1966 (Cth) s 52

Cases cited:

Doggett v Commonwealth Bank of Australia [2019] FCAFC 19

Wren v Mahoney [1972] HCA 5; 126 CLR 212

Date of hearing:

7 April 2020

Date of last submissions:

3 April 2020

Registry:

Victoria

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

33

Solicitor for the Applicant:

Ms Allamby of MST Lawyers

Counsel for the Respondent:

Mr Kovacic appeared in person

ORDERS

VID 1287 of 2019

BETWEEN:

A&S POWERSELLER PTY LTD

Applicant

AND:

ZORAN KOVACIC

Respondent

JUDGE:	KERR J
DATE OF ORDER:	7 APRIL 2020

THE COURT ORDERS THAT:

1.The Respondent’s application for review of the decision of Registrar Ryan to make a sequestration order dated 6 February 2020 be dismissed.

2.The Respondent pay the costs of the Applicant in the sum of $2,470.00.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

KERR J:

1. On 6 February 2020, Judicial Registrar Ryan in the exercise of the power of this Court ordered that the Respondent’s estate be sequestrated.  This is an application for review of that order. It was filed on 27 February 2020. For the reasons that follow, I refuse that application.  I earlier made an interlocutory order that proceedings under that sequestration order be stayed until my hearing of the matter. Having regard to the conclusions I have reached, I decline to extend that stay.

2. I am satisfied that the formal preconditions required for Registrar Ryan to have made a sequestration order pursuant to the Bankruptcy Act1966 (Cth) (Bankruptcy Act) were complied with.  On 2 September 2019, the Mr Kovacic had been personally served with an official copy of a bankruptcy notice. That notice had identified the basis of the debt the Applicant claimed the Respondent owed as being a default judgement made by the Dandenong Magistrates’ Court on 25 February 2019, in proceeding J13101693 A&S Powerseller Pty Ltd v Zoran Kovacic. The asserted debt not having been paid, Mr Kovacic was subsequently served with a Creditor’s Petition on 5 December 2019. The Creditor’s Petition was returnable on 23 January 2020.

3. When this matter first came before Registrar Ryan on 23 January 2020 it was adjourned at the request of A&S Powerseller Pty Ltd for a hearing on 6 February 2020.  When the matter then came before Registrar Ryan on that date, Mr Kovacic made an oral application for an adjournment.…