Angus Property and Development Pty Ltd v Dwyer
[2008] FMCA 1410
•23 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ANGUS PROPERTY AND DEVELOPMENT PTY LTD v DWYER & ANOR | [2008] FMCA 1410 |
| BANKRUPTCY – Sequestration Order – where no appeal against original judgment lodged. |
| Contracts Review Act 1980 McDonald Henry & Meek, Australian Bankruptcy Law & Practice (Thomson Reuters Subscription Service Bankruptcy Act 1966, s.52 |
| Angus Property Development v Dwyer & Anor [2007] FMCA 528 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 Ahearn v Deputy Commissioner for Taxation (Qld) (1987) 76 ALR 137 Re Lewin; Ex Parte Milner (1986) 11 FCR 312 |
| Applicant: | ANGUS PROPERTY AND DEVELOPMENT PTY LIMITED ACN 065 469 392 |
| Respondents: | PARIS DWYER & GEOFF DWYER |
| File Number: | SYG 2781 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 23 September 2008 |
| Date of Last Submission: | 23 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 23 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Johnson |
| Solicitors for the Applicant: | Sally Nash & Co |
| For the Respondents: | Mr Dwyer in person |
ORDERS
A sequestration order be made against the estate of Paris Dwyer and Geoff Dwyer.
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.
THE COURT NOTES:
That the date of the act of bankruptcy is 18 August 2006.
A consent to act as trustee has been signed by Scott Darren Pascoe and has been lodged with the Official Receiver in Sydney.
Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2781 of 2006
| ANGUS PROPERTY AND DEVELOPMENT PTY LIMITED ACN 065 469 392 |
Applicant
And
| PARIS DWYER & GEOFF DWYER |
Respondents
REASONS FOR JUDGMENT
On 2April 2007 I gave judgment in an earlier hearing of this matter, Angus Property Development v Dwyer & Anor [2007] FMCA 528. A petition had been presented and was sought to be heard but the debtors had, after some considerable time, succeeded in obtaining from the District Court the setting aside of the original default judgment and a hearing of their defence. In accordance with the authorities considered and cited by me in that decision I made an order setting aside a decision of Registrar Tesoriero pursuant to which a sequestration order had been made against the debtors, and, in its place, ordered that the petition be adjourned into the Registry to be brought on with five working days notice with liberty to apply. I ordered that the creditor's cost in the application were to be reserved. I also note that the petition itself had been extended and its life expires on 26 September 2008.
The hearing of the claim took place before Hughes DCJ earlier this year and his Honour's judgment was handed down on 12 August 2008. The claim was made under a guarantee of lease which had been taken out by a Mr Grant Dwyer, the son of Geoffrey Dwyer, and the brother of Paris Dwyer, the two debtors before me today. In the proceedings Paris and Geoffrey had argued that they did not sign a guarantee or perhaps more accurately, that they did not believe the document they signed was a guarantee believing, they said, that they were merely witnessing the signature of Grant Dwyer to the lease.
Hughes DCJ stated at [14] of his judgment:
“Dealing with the signing of the lease by the guarantors; it took place in the office of Mr Gonzalez. Mr Gonzalez's affidavit was read. He gave evidence and was available for cross-examination. I found him to be a truthful witness and I accept what he said in his evidence, that the document was explained to the guarantors, Geoffrey Dwyer and Paris Dwyer. I do not accept the explanation given by Geoffrey Dwyer nor Paris Dwyer, that they believed they were witnessing Grant Dwyer's signature.”
His Honour's reasons for a non acceptance of the case made by the defendant debtors is set out in some further detail and includes reference to the decision of the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52. His Honour also considered a defence that appears to have been raised by the defendants under the Contracts Review Act 1980 and accepted the submissions of the plaintiff in that regard as set out at [21] of his reasons. His Honour gave judgment in favour of the plaintiffs against the defendant debtors in the sum of $115,063.72.
In my earlier decision I noted that:
“[7] As at that date an act of bankruptcy had been committed by both debtors and the fact that the judgment upon which bankruptcy notice was based had subsequently been set aside does not nullify the consequences of non-compliance with the notice Re Vella; Ex parte Seymour (1983) 67 FLR 287 at [290]; Re Hayes; Ex parte Thomas Borthwick and Sons(A/Asia) Ltd (1970) 18 FLR 216. These cases were considered by Spender J in Re: Zagoridis and Maria Anne Zagoridis Ex parte: Q’Plas Group Pty Ltd 27 FCR 108 where, in a case the facts of which were remarkably similar to this one, his Honour ordered that he would adjourn the hearing of the petition to the registry to be brought on on five working days’ notice with liberty to apply.”
Thus, any discrepancy in the amount claimed under the bankruptcy notice and the amount claimed under the petition as a result of his Honour’s judgment is not a ground for invalidating the petition.
The creditors applied to the court pursuant to my orders for the hearing of the petition. On 18 August 2008 the debtors filed a notice of grounds of opposition in the following form:
“1. I oppose creditor petition. A cheque for $9000 was not credited;
2. I wish to appeal the judgment handed down on 12/08/08;
3. On the grounds that the agent Jamie Gonzalez committed perjury.”
There is an affidavit from Mr Geoff Dwyer which essentially repeats those grounds and adds that his former solicitor had suggested that he appeal the judgment. There is no other evidence either relating to the $9,000.00 payment or to the evidence of Mr Gonzalez which the debtors say constituted perjury. I am advised by Mr Johnson, who appears on behalf of the creditors, that so far as he and the creditors are aware no application for stay of the judgment of his Honour Hughes DCJ has been made, no appeal has been filed and no other steps have been taken in regard to the decision.
Today Mr Dwyer appeared before me acting on behalf of himself and his daughter. He told me that neither he nor his daughter had any money, they had no assets and they were unable to satisfy the debt, whatever it might be. He told me that he believed that the amount claimed in the petition, and in the affidavit supporting it was, incorrect but did not suggest for one moment that the incorrectness would reduce the debt to below $2,000.00. He told me why he believed, contrary to the views expressed by Hughes DCJ, who had seen the witness, that Mr Gonzalez had committed perjury. He did not attempt to explain why he had not sought a stay of execution nor yet file a notice of grounds of appeal even though the time for so doing must either already have run out or will very shortly do so. In these circumstances I am not prepared to further adjourn the hearing of the petition. I am sensible of the views expressed by the Federal Court in such cases as Ahearn v Deputy Commissioner for Taxation (Qld) (1987) 76 ALR 137, Re Lewin; Ex Parte Milner (1986) 11 FCR 312 and the cases cited in McDonald Henry & Meek, Australian Bankruptcy Law & Practice (Thomson Reuters Subscription Service) at [1-2899] that give the court a discretion to grant an adjournment of a petition where an appeal has been lodged against a first instance judgment. However, in this case no appeal has been lodged and in any event the history of the litigation between the parties would militate against exercising such a discretion at this late stage. I am also of the view that given the admission by the respondents of their impecuniosity it would not be appropriate in the discretion of the court to further hold up the sequestration of their estates so that what little assets there may be can be collected in and utilised for the benefit of all creditors.
I am satisfied that the debtors committed the acts of bankruptcy alleged in the petition. I am satisfied of the proof of the other matters required by s.52 of the Bankruptcy Act 1966 (the “Act”). I order that:
(1)A sequestration order be made against the estate of Paris Dwyer and Geoff Dwyer.
(2)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.
THE COURT NOTES:
(i)That the date of the act of bankruptcy is 18 August 2006.
(ii)A consent to act as trustee has been signed by Scott Darren Pascoe and has been lodged with the Official Receiver in Sydney.
(iii)Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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