American Express Australia Ltd v Kadison
[2008] FMCA 559
•29 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AMERICAN EXPRESS AUSTRALIA LTD v KADISON | [2008] FMCA 559 |
| BANKRUPTCY – Sequestration order. |
| Bankruptcy Act 1966 (Cth) ss.44, 52 Bankruptcy Regulations 1996 (Cth) regs.16.01, 16.02 |
| Applicant: | AMERICAN EXPRESS AUSTRALIA LIMITED ACN 108 952 058 |
| Respondent: | DANIEL JOSHUA KADISON |
| File Number: | SYG 3976 of 2007 |
| Judgment of: | Barnes FM |
| Hearing date: | 29 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2008 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitors for the Respondent: | Kemp Strang |
ORDERS
That a Sequestration Order be made against the estate of Daniel Joshua Kadison.
That the applicant creditor's costs fixed in the amount of $4,266.25 be paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1996.
The Court notes that the date of the act of bankruptcy is 5 December 2007.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3976 of 2007
| AMERICAN EXPRESS AUSTRALIA LIMITED ACN 108 952 058 |
Applicant
And
| DANIEL JOSHUA KADISON |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The matter comes before me by way of an application for a sequestration order. The applicant presented and filed a creditor’s petition on 28 December 2007 seeking that a sequestration order be made against the estate of the respondent debtor. The petition is founded on an alleged failure by the respondent debtor to comply with a bankruptcy notice issued on 12 November 2007 based on a default judgment of the Local Court of New South Wales made and entered on 28 September 2007 in the sum of $56,457.17.
The respondent debtor is not present today. This matter first came before a Registrar of this Court on 17 March 2008. The respondent debtor participated on that occasion by way of telephone link. The matter was adjourned until today to enable the respondent debtor to file further affidavit evidence and an amended notice of opposition. He did not do so.
I understand from the solicitor for the applicant creditor that the respondent debtor was to participate on the hearing today by way of telephone link and that the Registrar attempted to contact him on two occasions. He was not available and a message was left for him. I am also informed that the solicitor for the applicant spoke to the respondent debtor today, reminding him of the hearing.
When the matter came before me, we endeavoured to telephone the respondent debtor in Court but reached a telephone answering service on which a message was left for him to call my associate on a number provided. The Court adjourned to enable that message to be passed on and to ensure that the respondent had the opportunity to participate if he wished to do so. He did not return the call. After the adjournment a further unsuccessful attempt to telephone the respondent was made.
The matter was then called outside the Court. There was no appearance by or on behalf of the respondent debtor in these proceedings. In those circumstances the applicant creditor seeks to proceed on the creditor's petition in the absence of the respondent debtor. In all the circumstances I am satisfied that it is appropriate to proceed with the application.
As indicated above, the creditor's petition is founded on the failure by the respondent debtor to comply with a bankruptcy notice which required the respondent debtor to pay the creditor $56,457.17 within 21 days of service. The applicant has filed and relies on the requisite affidavits under the Federal Magistrates Court (Bankruptcy) Rules. Service of the bankruptcy notice (a matter raised in the notice of opposition) is addressed in the affidavit of Jane Foley sworn and filed on 28 April 2008. The applicant creditor relies on service of the bankruptcy notice on the respondent debtor by way of electronic transmission by email in accordance with reg.16.01(1)(e) of the Bankruptcy Regulations. The respondent debtor is not present today to take issue with such service as provided for in reg.16.02. The affidavit of Ms Foley attests to sending the email on 14 November 2007 to an email address for Mr Kadision and to receipt of an email advising that the email had been successfully relayed to that email address. Further, Ms Foley attests to a telephone conversation on 15 November 2007 with a male who identified himself as the respondent debtor and stated to her that he had received the bankruptcy notice issued by American Express.
I am satisfied on the evidence before me as to service of the bankruptcy notice and also as to the respondent’s failure to comply with the bankruptcy notice within 21 days. I am satisfied that the respondent committed the act of bankruptcy alleged in the petition. The date of the act of bankruptcy is 5 December 2007.
The creditor's petition relies on a debt which is owing to the creditor which amounts to more than $2,000, consistent with the requirements of s.44 of the Bankruptcy Act 1966 (Cth). I am satisfied on the basis of the evidence before me that the debt is still owing. I am also satisfied with the proof of the matters required under s.52 of the Bankruptcy Act 1966 by virtue of the various affidavits relied on and filed in these proceedings.
On the last occasion it was indicated by the respondent debtor that he wished to raise an issue of solvency. However on the material before me and in the absence of the debtor, I am satisfied with proof of the matters in s.52(1) and not satisfied that the respondent debtor is able to pay his debts or that for any other sufficient cause a sequestration order ought not to be made. Accordingly, I make a sequestration order against the estate of Daniel Joshua Kadison.
The creditor seeks costs in a fixed amount, rather than an order that costs be taxed. In the circumstances I consider that the amount of $4,266.25, as set out in a short form bill of costs and supporting documentation, is appropriate.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 5 May 2008
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