Asquith Leaf Pty Ltd v Madrid

[2024] FedCFamC2G 284

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Asquith Leaf Pty Ltd v Madrid [2024] FedCFamC2G 284   

File number(s):	SYG 232 of 2024
Judgment of:	JUDGE STREET
Date of judgment:	27 March 2024
Catchwords:	BANKRUPTCY – application under s 50 – preserve status quo – criteria - reasonable living expenses and reasonable living costs
Legislation:	Bankruptcy Act 1966 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	2
Date of hearing:	27 March 2024
Place:	Sydney
Counsel for the Applicant:	Mr M Hazan
Solicitor for the Applicant:	HWL Ebsworth Lawyers
Respondent:	Appeared via telephone

ORDERS

SYG 232 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

IN THE MATTER OF HUGO MADRID, BANKRUPT

BETWEEN:

ASQUITH LEAF PTY LTD (ACN 169 818 204)
First Applicant

BANC BANKSTOWN DEVELOPMENTS (BANKSTOWN) PTY LTD (ACN 609 069 945)
Second Applicant

AND:

HUGO MADRID
Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	27 MARCH 2024

BY CONSENT, THE COURT ORDERS THAT:

1.The interim application, filed in Court on 19 March 2024, be dismissed.

2.There be no order as to costs in respect of the interim application, with the intent that each party bear their own costs of the interim application.

THE COURT NOTES THAT:

A.The creditor’s petition is still listed for hearing at 9:30AM on 30 April 2024.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE STREET

1. The applicant petitioning creditor commenced proceedings on 14 February 2024 and filed an amended petition on 15 March 2024 in respect of an alleged act of bankruptcy occurring by reason of the failure to comply with a bankruptcy notice served on 11 September 2023, the failure said to occur on 3 October 2023, being the date of the act of bankruptcy. On 19 March 2024, an urgent ex parte application was advanced on behalf of the applicant to seek appointment of a trustee under s 50 of the Bankruptcy Act 1966 (Cth). The application identified that the respondent was in the process of selling a property, which was shortly about to settle.

2. The respondent appeared at the hearing on 19 March 2024 and the Court confirmed service upon the respondent and stood the proceedings over to today for the purpose of permitting the parties to seek to explore resolution. The nature of the orders that can be made under s 50 are, in essence, orders where necessary, to preserve the status quo, in respect of which the criteria under s 50(1A) are an essential criteria to be met before engaging the consideration of the discretion. The Court notes a number of orders of this kind have been made by the court. However, it is appropriate, because of the nature, being similar to a freezing order, to ensure, where an appointment is made in respect of the whole of the property of the debtor, or proposed to be made, that it is the subject of an appropriate exemption in respect of a reasonable amount for living expenses and a reasonable amount for legal costs. However, in the present case, the parties have reached agreement, and accordingly, the Court has made the orders in respect of the interim application identified above.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of Judge Street.

Associate:

Dated:       16 April 2024