Bank of Western Australia v Coumanios
[2009] FMCA 1004
•6 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BANK OF WESTERN AUSTRALIA v COUMANIOS | [2009] FMCA 1004 |
| BANKRUPTCY – Adjournment for time to sign authority under s.188. |
| Bankruptcy Act 1966 (Cth) ss.52 and 188 |
| Frosso Coumanios v Bank of Western Australia Limited [2009] FMCA 487 |
| Applicant: | BANK OF WESTERN AUSTRALIA |
| Respondent: | JOHN COUMANIOS |
| File Number: | SYG 1396 of 2009 |
| Applicant: | BANK OF WESTERN AUSTRALIA |
| Respondent: | FROSSO COUMANIOS |
| File Number: | SYG 1397 of 2009 |
| Applicant: | BANK OF WESTERN AUSTRALIA |
| Respondent: | STANLEY COUMANIOS |
| File Number: | SYG 1398 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 6 October 2009 |
| Date of Last Submission: | 6 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 6 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Bilinsky |
| Solicitors for the Applicant: | Henry Davis York |
| Counsel for the Respondent: | Mr M. Aldridge SC |
| Solicitors for the Respondent: | McKells Solicitors |
| Counsel for the Supporting Creditor: | Mr J. Kay Hoyle |
ORDERS
Matter adjourned until Tuesday 13 October 2009 at 9.30 am.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1396 of 2009
| BANK OF WESTERN AUSTRALIA |
Applicant
And
| JOHN COUMANIOS |
Respondent
SYG 1397 of 2009
| BANK OF WESTERN AUSTRALIA |
Applicant
And
| FROSSO COUMANIOS |
Respondent
SYG 1938 of 2009
| BANK OF WESTERN AUSTRALIA |
Applicant
And
| STANLEY COUMANIOS |
Respondent
REASONS FOR JUDGMENT
These three related matters came before me today for the hearing of the petition for a sequestration order. Mr Aldridge appeared for the debtors and sought a six week adjournment so that he could, in effect, collect evidence which would be used for the purposes of certain Supreme Court proceedings seeking to set aside the judgment upon which the bankruptcy notice was based. There was some suggestion that the debtors would utilise this information in opposition to the creditors’ petition.
Given the history of these proceedings and the reluctance of a court to go behind a judgment and of course the fact that, even if the judgment is set aside, the act of bankruptcy has still been committed and is capable of founding a petition, I am not prepared to grant Mr Aldridge the adjournment that he seeks.
There was also some suggestion that the adjournment be granted for the purposes of allowing the debtors to issue subpoenas and obtain evidence that might indicate that the original amount of the judgment debt was incorrect and, therefore, the amount claimed in the bankruptcy notice was also incorrect. The difficulty with this is that an application to set aside the bankruptcy notices on behalf of each of the debtors was made and judgment was given by Barnes FM on 22 May 2009; Frosso Coumanios v Bank of Western Australia Limited [2009] FMCA 487.
Paragraph 6 of her Honour’s reasons in respect of Frosso Coumanios says:
“She claimed generally that the respondent’s claims, including the claim for interest, appeared to be erroneous or excessive and sought to claim under section 41(5) of the Bankruptcy Act that the sum specified as the amount due exceeded the amount in fact due. She now relies on two grounds to assert that there are defects or irregularities in the bankruptcy notice, in particular in relation to the claim for interest.”
It would appear from that that the claim concerning the calculation of the amount of the judgment debt was abandoned and I do not propose to allow any adjournment on that basis either.
At the end of the day Mr Aldridge, for the debtors, asked that, if I was not prepared to grant the larger adjournment requested, I grant an adjournment for seven days so that his clients could sign the relevant authorities under s.188 of the Bankruptcy Act 1966 (the “Act”) and seek to make arrangements with their creditors.
Given the policy of the Act which is to allow persons to avoid bankruptcy, if possible, and given the amount of the judgment debt which, in the context of the original debt, is small, I am sympathetic to that request. On the other hand, I am not prepared to permit of any further adjournments.
I would expect that the authorities which are required to be signed by each of the debtors should be signed no later than Friday 9 October 2009. If the authorities are not signed by that date, then the matter will be restored for hearing a 9.30 am on 13 October 2009, at which time I would expect that, subject to proof of the required matters under s.52 of the Act, sequestration orders will be made against each of the debtors.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 12 October 2009
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