All Options Pty Ltd v Mathews
[2021] FCCA 236
•9 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALL OPTIONS PTY LTD v MATHEWS | [2021] FCCA 236 |
| Catchwords: BANKRUPTCY – application for review of a Registrars decision – directions hearing – stay of sequestration order – where evidence is scant – where upon current affidavit material, application must fail – application for stay refused – matter adjourned for final hearing. |
| Applicant: | ALL OPTIONS PTY LTD (ACN 123 320 169) |
| Respondent: | DARREN MATHEWS |
| File Number: | MLG 4442 of 2019 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 9 February 2021 |
| Date of Last Submission: | 9 February 2021 |
| Delivered at: | Melbourne |
| Delivered on: | 9 February 2021 |
REPRESENTATION
| Counsel for the Applicant: | Ms L. Limone |
| Solicitor for the Applicant: | Mr M. Nicholls |
| Respondent: | In person |
ORDERS
The respondent (Darren Mathews) file and serve any further affidavit material in support of his application for review by 4.00pm on 9 March 2021.
The applicant (All Options Pty Ltd) provide affidavit material in reply by 4.00pm on 23 March 2021.
The matter be listed for hearing at 10.00am on Wednesday, 26 April 2021.
The application for a stay of the sequestration order be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 4442 of 2019
| ALL OPTIONS PTY LTD (ACN 123 320 169) |
Applicant
And
| DARREN MATHEWS |
Respondent
REASONS FOR JUDGMENT
(Revised from ex tempore reasons)
On 15 October 2020, an order was made for the sequestration of the respondent debtor’s estate.
By application for review filed on 10 November 2020, the bankrupt seeks an order for the review of the sequestration order, for the setting aside of that order and for the enforcement and administration of the sequestration order to be stayed, pending determination of that review.
In an affidavit affirmed by the debtor on 2 November 2020 in support of his application for review, he deposed as follows:
I confirm that I have submitted a form B3A today to the Federal Court via e-lodgement and that this review is within the 21-day period of which I must submit this application.
In the period November 2020 to date, the bankrupt has filed no further evidence in support of his application and, in my opinion, there is force in the submission of the petitioning creditor that there have already been significant delays in this matter.
As matters presently stand, the debt upon which the petitioning creditor has relied has been established by a judgment of the Federal Court of Australia[1] and affirmed by a decision of the Full Court of the Federal Court.[2] Nothing is presently demonstrated by the bankrupt as to why there are any grounds upon which the present sequestration order should be stayed. The application for a stay is refused.
[1] All Options Pty Ltd v Flightdeck Geelong Pty Ltd [2019] FCA 588 (Steward J); All Options Pty Ltd v Flightdeck Geelong Pty Ltd (No 2) [2019] FCA 1344 (Steward J).
[2] Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 147 ASCR 227.
Otherwise, there will be orders and directions in the terms as indicated in the course of the directions hearing.
For the avoidance of doubt, in the course of this directions hearing, I was clear in informing the bankrupt that on the basis of his one-paragraph affidavit above, his present application for review must fail and that it would be in his interests to obtain legal advice. The bankrupt submitted that in November 2020 he had sought legal advice but that he had been told, in effect, that a lawyer would need some time to look at the matter. In my view, the bankrupt has already had a significant amount of time for the matter to be looked at, and I have emphasised to the bankrupt the importance of him not sitting on his hands and taking any steps that are properly open to him to adduce evidence upon which he might rely in support of his application for review of the sequestration order.
It will be a matter for the bankrupt whether he takes the opportunity which has now been extended to him to do so.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly
Associate:
Date: 11 February 2021
3
0