Balodis v NPS Pty Ltd
[2007] FMCA 1034
•19 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BALODIS v NPS PTY LTD | [2007] FMCA 1034 |
| BANKRUPTCY – Application for review of sequestration order – where applicant has failed in an application to set aside judgment. |
| Bankruptcy Act 1966, s.52 Federal Magistrates Court (Bankruptcy) Rules 2006 |
| Applicant: | JOHN BALODIS TRADING AS LOCAL PLUMBING |
| Respondent: | NPS PTY LTD TRADING AS NORTHERN PLUMBING SUPPLIES |
| File number: | ADG306 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 19 June 2007 |
| Date of last submission: | 19 June 2007 |
| Delivered at: | Sydney via videolink to Adelaide |
| Delivered on: | 19 June 2007 |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Solicitors for the Respondent: | Marshalls Solicitors |
ORDERS
Application for review dismissed.
Applicant bankrupt pay respondent’s costs to be taxed if not agreed in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
ADG 306 of 2006
| JOHN BALODIS TRADING AS LOCAL PLUMBING |
Applicant
And
| NPS PTY LIMITED TRADING AS NORTHERN PLUMBING SUPPLIES |
Respondent
REASONS FOR JUDGMENT
There comes before me today an application for review of a sequestration order made by Registrar Christie on 2 April 2007. In his affidavit in support of the application for review Mr Balodis, the bankrupt, states that the judgment was not entered in a regular fashion and that there was a dispute as to the debt to the petitioning creditor. The amount of the petition and creditor’s debt is not high, being $4,664.00, but is still an amount for which a sequestration order can be given.
When the matter first came before me I agreed to it being adjourned so that the bankrupt’s application to set aside the judgment of the Adelaide Magistrates Court, which was the foundation for the bankruptcy notice and then the petition, could be heard. That application was heard on 12 June 2007 and was dismissed. As I understand it from representations made at the bar table both by Mr Balodis and Ms Forsyth who appears for the petitioning creditor, the matter was heard by a Magistrate and Mr Balodis had an opportunity to address the court. Mr Balodis tells me that he did not have an opportunity to tell the court that the initial summons was served firstly on his ex-wife who destroyed it and that then after a series of events some of which involved other court proceedings he made a genuine human error and forgot to attend the hearing. I cannot make a determination as to whether this occurred or not and if it did occur why it did occur because I do not have a transcript of the proceedings before the learned Magistrate. Likewise, I have no evidence before me that Mr Balodis put up a strong case to indicate that he had a defence to the proceedings.
A court in bankruptcy is always concerned when a judgment in respect of which bankruptcy notices and petitions have been issued is obtained by default and that is why I was prepared to postpone this hearing until after the application to set aside. However, once the application to set aside has been heard and the bankrupt has had an opportunity to put his best case before the Magistrate the court must take a different view. This court, whilst having power to go behind judgments, would not exercise such a power when the bankrupt has had a similar opportunity in the very court in which the judgment was entered and has failed.
In all the circumstances I am satisfied that the sequestration order was properly made and that the Registrar was satisfied of all the requirements of s.52 of the Bankruptcy Act 1966 (the “Act”) as am I. I will therefore dismiss the application for review and order that the applicant bankrupt pay the respondent’s costs to be taxed if not agreed according to the Federal Magistrates Court (Bankruptcy) Rules 2006.
I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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