Angus Property Development v Dwyer

[2007] FMCA 528

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ANGUS PROPERTY &DEVELOPMENT v DWYER & ANOR [2007] FMCA 528

BANKRUPTCY – Review of Registrar’s decision − where a bankruptcy petition against the respondent debtors was dismissed − where the District Court awarded a default judgment − where the judgment was set aside conditionally on terms − where the amended defence filed in the District Court alleges fraud on the part of the creditor by his agent − where an act of bankruptcy has been committed − where a trial in the District Court of the substantive issues is due to be listed in the reasonably near future − whether in the event of an appeal against the original judgment the petition should be adjourned until the appeal is finalised.

Bankruptcy Act 1966

Martin & Anor v Commonwealth Bank of Australia (2001) 217 ALR 634
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
Re: Zagoridis and Maria Anne Zagoridis Ex parte: Q’Plas Group Pty Ltd 27 FCR 108
Byron v Southern Star [1997] 151 FCA
Re Geard Ex parte Reid (1994) 217 ALR 191
Ahern v DCT (1987) 76 ALR 137
Re Sarikaya; Ex parte Victorian Workcover Authority (1997) 80 FCR 262

Applicant: ANGUS PROPERTY & DEVELOPMENT PTY LTD
ACN 065 469 392

Respondents: PARIS DWYER AND GEOFF DWYER

File Number: SYG2781 of 2006

Judgment of: Raphael FM

Hearing date: 2 April 2007

Date of Last Submission: 2 April 2007

Delivered at: Sydney

Delivered on: 16 April 2007

REPRESENTATION

Solicitors for the Applicant: Sally Nash & Co

Counsel for the Respondent: Mr R M Jefferis

ORDERS

1. Orders of Registrar Tesoriero made on 6 February 2007 set aside.

2. The petition be adjourned into the registry to be brought on on five working days notice with liberty to apply. 

3. The creditor’s costs of the application be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2781 of 2006

ANGUS PROPERTY & DEVELOPMENT PTY LTD

Applicant

And

PARIS DWYER AND GEOFF DWYER

Respondents

REASONS FOR JUDGMENT

1. This proceeding is an application by the creditor for review of a decision of Registrar Tesoriero made on 6 February 2007 where the learned Registrar ordered that the bankruptcy petition against the respondent debtors be dismissed and that the respondent debtors pay the applicant creditor’s costs (including reserved costs, if any) as agreed or taxed.  The creditor’s application is that I should set aside the orders of the learned Registrar and then adjourn the hearing of the petition so that the substantive proceedings in the District Court which have been the subject of a default judgment can be heard.

2. On 22 November 2005 the creditor issued proceedings in the District Court of New South Wales making a claim of $139,618.95 against Grant Dwyer, Paris Dwyer and Geoff Dwyer.  The claim represented arrears of rent due under a lease of certain premises between the creditor and a company known as Paris Jade International Pty Limited ACN 101…