Australia and New Zealand Banking Group Ltd v Mahaffy
[2013] FMCA 150
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD v MAHAFFY | [2013] FMCA 150 |
| BANKRUPTCY – Contested creditor’s petition – absence of the debtor. |
| Bankruptcy Act 1966 (Cth), s.52 Federal Magistrates (Bankruptcy) Rules 2006 (Cth) |
| Applicant: | AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD |
| Respondent: | DAVID BRUCE MAHAFFY |
| File Number: | SYG 1873 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 4 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 4 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr C D Wood |
| Solicitors for the Applicant: | Minter Ellison |
No appearance by or on behalf of the Respondent
ORDERS
A sequestration order is made against the estate of David Bruce Mahaffy.
The applicant creditor’s costs, including reserved costs, if any, be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).
The Court notes that the date of the act of bankruptcy is 23 August 2012.
The Court notes the obligations on the applicant creditor to notify, enter and serve these orders in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1873 of 2012
| AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD |
Applicant
And
| DAVID BRUCE MAHAFFY |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me a creditor’s petition filed on 28 August 2012 seeking a sequestration order and related orders against David Bruce Mahaffy. The petition is supported by an affidavit by Elizabeth Mary Allen verifying paragraph 4 of it, as well as the contents of the petition itself, and affidavits of service of the petition and, importantly, the bankruptcy notice supporting the petition.
The process server, Robert Colin Lloyd, has prepared a supplementary affidavit verifying personal service of the bankruptcy notice on
Mr Mahaffy. Having regard to the supplementary affidavit of Mr Lloyd made on 4 February 2013, I accept that the bankruptcy notice was served on Mr Mahaffy in person, as alleged in that affidavit.
I also have before me final affidavits of search and debt supporting the petition. On the basis of that material, I am satisfied that the procedural requirements for the making of a sequestration order have been met.
When the matter was called this morning, there was no appearance by or on behalf of Mr Mahaffy. I noted from the court file that Mr Mahaffy apparently faxed to the Court yesterday a letter and purported medical certificate stating that he would not be attending Court today, for a medical reason. I note, from exhibit C1, that Mr Mahaffy has previously raised illness as a reason to avoid attending Court for significant periods. I also note that, in a number of the many Court events in this matter over the past six months, Mr Mahaffy was given the opportunity to attend by telephone. However, given that Mr Mahaffy had, on 2 October 2012, filed a Notice of Grounds of Opposition to the petition and filed affidavit evidence in support of that Notice, he was required for cross-examination today and, on the last occasion the matter was before the registrar, he was informed that his personal attendance today would be required.
In the circumstances, the faxing of the letter and a purported medical certificate the day before the hearing of the petition is an unsatisfactory way to seek a further adjournment. I stood the matter in the list until 2.15pm today in order to attempt to contact Mr Mahaffy by telephone in order to provide him with the opportunity to apply for an adjournment in a proper way. However, it has not been possible to contact him on his nominated mobile telephone number.
In the circumstances, counsel for the petitioning creditor has pressed upon me the proposition that the Court should proceed to deal with the petition in the absence of Mr Mahaffy. Notwithstanding the serious consequences of a sequestration order for Mr Mahaffy, I have decided that the interests of the administration of justice are best served by the Court proceeding today.
The Notice of Grounds of Opposition is essentially a challenge to the judgment debt supporting the petition. The affidavit of George Kostov made on 1 March 2013 addresses that issue. I am satisfied, based on that material, that Mr Mahaffy has had an opportunity to take proceedings against the bank to address the underlying issue of the judgment debt. He has been unsuccessful in the attempt he has made in the District Court of New South Wales, for procedural reasons. Although he was aware of the opportunity to seek to appeal to the New South Wales Court of Appeal, he has apparently not, to date, done so. I am not persuaded, on the basis of the available material, that there is any real question about the judgment debt relied upon by the petitioning creditor.
There is no assertion of solvency, and I am not persuaded that there is any other reason for the Court either to refrain from making a sequestration order or to defer doing so.
I am satisfied that Mr Mahaffy committed the act of bankruptcy alleged in the petition, and I am satisfied with the proof of the other matters of which s.52(1) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) requires proof.
I make a sequestration order against the estate of David Bruce Mahaffy and I order that the applicant creditor’s costs, including reserved costs, if any, be taxed and paid in accordance with the Bankruptcy Act.
I note the obligations on the petitioning creditor to enter, serve and notify Mr Mahaffy and the Official Receiver of the orders made by the Court. I further note that the date of the act of bankruptcy is 23 August 2012.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 March 2013
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