Agnew v Arnott
[2010] FMCA 421
•15 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AGNEW & ORS v ARNOTT | [2010] FMCA 421 |
| BANKRUPTCY – Refusal of adjournment where no proper grounds shown – hearing of petition. |
| Bankruptcy Act 1966, s.52 |
| Applicant: | NEVIN RUPERT AGNEW TOGETHER WITH EACH OF THE PERSONS NAMED IN THE SCHEDULE HERETO TRADING AS MINTER ELLISON ABN 91 556 716 819 |
| Respondent: | DAVID ARNOTT |
| File Number: | SYG 2668 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 15 June 2010 |
| Date of Last Submission: | 15 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Hynes |
| Solicitors for the Applicant: | Minter Ellison |
| Counsel for the Respondent: | Mr F Maghami |
| Solicitors for the Respondent: | Robert Wehbe and Partners |
ORDERS
A sequestration order be made against the estate of David Arnott.
The Applicant Creditor’s costs, (including any reserved costs) be taxed (in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006) 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 two days.
THE COURT NOTES:
(i)The date of the act of bankruptcy is 12 October 2010.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2668 of 2009
| NEVIN RUPERT AGNEW TOGETHER WITH EACH OF THE PERSONS NAMED IN THE SCHEDULE HERETO TRADING AS MINTER ELLISON ABN 91 556 716 819 |
Applicant
And
| DAVID ARNOTT |
Respondent
REASONS FOR JUDGMENT
In this matter, which is an application for a sequestration order against David Arnott, the respondent debtor seeks an adjournment so that he can obtain a review of a decision of Registrar McTegg in the Local Court of New South Wales to dismiss an application made by the debtor to set aside the default judgment that was obtained by the petitioning creditor for legal costs. The judgment itself appears to be dated 17 June 2009 so that it is two days short of a year since it was obtained. The applicant issued a bankruptcy notice based upon that judgment on 18 August 2009. The bankruptcy notice was served on 24 September 2009. So the debtor has had, at least since that date, an awareness of the seriousness of his position. I am told that he made an application to set aside the bankruptcy notice and his application failed. I do not have a copy of the decision with me, but this presumably took place before 3 November 2009, when the petition was presented.
Since the presentation of the petition the matter has been before the court on several occasions. Firstly, there was an application for substituted service, then there was an adjournment from 11 February to 2 March, then there was a further adjournment to 23 March. On that day the matter was adjourned further to 4 May. It was only at that stage that the debtor decided to take some steps, which he probably should have taken immediately after the bankruptcy notice was served namely, to seek to set aside the judgment. The matter was adjourned again so that this could be done. It was done and the application failed.
Mr Maghami, who appears for the debtor, rightly says that his client’s rights are of review and there will be a full rehearing of the application, this time with the debtor represented, which he was not upon the first occasion. But I have not really been provided with any evidence of what the complaint is about the judgment. Mr Arnott’s affidavit of 15 June 2010, which has been filed in court, merely says that he was unrepresented and that he has recently instructed a firm of solicitors to act on his behalf. He has not told me why he believes the decision of the Registrar was wrong, so that I can make some assessment of the prospects of success in the application which is foreshadowed.
I note that in an affidavit dated 10 February 2010, Mr Arnott makes some complaints about the legal representation he received from the solicitors involved, but there is no indication that he ever commenced any proceedings against them for negligence or breach of contract. In an affidavit sworn by Mr Gary Stephen Ulman on 26 October 2009 there is exhibited a document completed by the debtor which seems to indicate that he has absolutely no assets whatsoever, as he claims that he is unemployed has got no income and has $60,000.00 of liabilities.
Given the number of times this matter has already been before the court, and given the debtor’s failure to take the steps which he should have taken a very considerable time ago to challenge the judgment that has been obtained against him, I am unable to grant the adjournment requested.
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 (the “Act”). I will make a sequestration order against the estate of David Arnott. The Applicant Creditor’s costs, (including any reserved costs), be taxed (in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006) 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 that the date of the act of bankruptcy is 12 October 2009.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 17 June 2010
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