Accounts Control Management v Dwight
[2009] FMCA 1324
•22 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ACCOUNTS CONTROL MANAGEMENT v DWIGHT | [2009] FMCA 1324 |
| BANKRUPTCY – Sequestration order – no reason to go behind judgment of Local Court. |
| New South Wales Conveyancing Act 1919 Bankruptcy Act 1966 |
| Applicant: | ACCOUNTS CONTROL MANAGEMENT ACN 050 268 141 |
| Respondent: | ROBYN ROSE DWIGHT |
| File Number: | SYG 2509 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 22 December 2009 |
| Date of Last Submission: | 22 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Spackman |
| For the Respondent: | In person |
ORDERS
A sequestration order be made against the estate of Robyn Rose Dwight.
The applicant creditor’s costs be fixed in the amount of $4,425.55 and paid from the estate of the Respondent Debtor in accordance with the Act.
Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.
THE COURT NOTES:
(i)That the date of the act of bankruptcy is 11 August 2009.
(ii)A consent to act as trustee has been signed by Maxwell William Prentice and has been lodged with the Official Receiver in Sydney.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2509 of 2009
| ACCOUNTS CONTROL MANAGEMENT ACN 050 268 141 |
Applicant
And
| ROBYN ROSE DWIGHT |
Respondent
REASONS FOR JUDGMENT
This is the adjourned hearing of an application for a sequestration order against Robyn Rose Dwight. Ms Dwight’s situation is unfortunate and the court has considerable sympathy for her. In 2007 she took out a personal loan with the National Australia Bank (“NAB”). At the behest of the bank she insured that loan against the possibility that she should become unemployed. The insurance policy was taken out with MLC which is an associated entity to the NAB. A premium was paid. A few months after the loan had been taken out Ms Dwight became unemployed. She told the NAB. She expected the NAB would tell MLC. They did not. She made no attempt herself at this time to inform the MLC. If she had made a claim against the MLC it would have paid four months of the instalments of the personal loan. In this particular case that would have amounted to approximately $1,500.00 out of a total loan of approximately $16,000.00. Ms Dwight did receive at some later stage a copy of a statement of account from the NAB which indicated that the account had been closed and that they would credit to it a small amount of money as the loan cover rebate. The amount was $66.07. For reasons which are understandable, given Ms Dwight’s personal situation, she did not query why she should be given a credit if a payment was going to be made under the policy and she did not query the fact that the policy was going to reduce the debt only by approximately $1,500.00 whereas the bank indicated in its statement that the whole debt had been written off as a bad debt.
Some time later the NAB sold the debt to Accounts Control Management Services Pty Limited. It also sent a letter dated 19 March 2008 to Ms Dwight at her home address. There is no evidence that the letter was sent by registered post. The letter effectively is a notice of assignment for the purposes of the New South Wales Conveyancing Act 1919 and that would effect a legal assignment of the debt, so that the proper plaintiff in any proceedings against Ms Dwight would be Accounts Control Management Services Pty Limited. Ms Dwight says she never received that letter.
In July 2008 Accounts Control commenced proceedings against Ms White in the local court of New South Wales. She defended those proceedings and cross‑claimed. Part of her defence was that she had not received notice of the assignment. The other parts of her defence related to the fact that the insurance policy had never been put into effect. This, of course, was of no concern to the then plaintiff. The plaintiff asked for summary judgment and the Local Court Magistrate requested statements from the parties which were provided. Ms Dwight made her point and the Local Court Magistrate came to the conclusion that she had no grounds of defence and judgment was entered against her. It is on the basis of this judgment that a bankruptcy notice was issued and the act of bankruptcy occurred on 11 August 2009.
Ms Dwight comes to this court seeking to resist the petition. She says again that she never received the notice of assignment and she has given evidence to that effect. The difficulty which I have is that a court has already decided on this matter, being the Local Court of New South Wales and that the judgment that was obtained against her was obtained in the face of that argument. It would therefore be inappropriate, in my view, for this court to go behind the judgment whatever it may have thought about the receipt or otherwise of the notice.
Ms Dwight appeared on her own behalf. I questioned her at some length as to her assets and liabilities in case it could be said that she was solvent. She informs me that she has a house jointly owned with her husband which is worth approximately $380,000.00 and there is a mortgage upon it of $370,000.00 and possibly one mortgage payment in arrears. She did not tell me, but admitted to Mr Spackman who appears on behalf of the applicant, that she also has a judgment against her for approximately $10,000.00 from Credit Call for a personal loan. It seems to me in these circumstances that added together with the current debt Ms Dwight could not be said to be solvent. She is unemployed and tells me that she has no other assets.
In all these circumstances I believe it is appropriate to make a sequestration order against Ms Dwight. I am satisfied that the respondent committed the act of bankruptcy alleged in the petition. I am satisfied with the proof of the other matters required by s.52 of the Bankruptcy Act 1966. I make a sequestration order against the estate of Robyn Rose Dwight. The court notes that the date of the act for bankruptcy is 11 August 2009. I note the consent to act as trustee has been signed by William Prentice and has been lodged with the official receiver in Sydney.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 3 February 2010
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