Barac v Tresfold Pty Ltd
[2004] FMCA 578
•31 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARAC v TRESFOLD PTY LTD | [2004] FMCA 578 |
| BANKRUPTCY – Application to set aside bankruptcy notice – where applicant claims to never have had any dealings with the creditor – where judgment on which the bankruptcy notice was based concerned a different person who had the same name as the applicant but who resided at a different address. |
| Applicant: | VLADIMIR BARAC |
| Respondent: | TRESFOLD PTY LIMITED |
| File No: | SZ 2527 of 2004 |
| Delivered on: | 31 August 2004 |
| Delivered at: | Sydney |
| Hearing date: | 31 August 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr A M Gruzman |
| Solicitors for the Applicant: | David Weston & Co |
| For the Respondent: | No appearance |
ORDERS
Bankruptcy Notice N1817/04 is set aside.
Respondent to pay the applicant’s costs of the application on an indemnity basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 2527 of 2004
| VLADIMIR BARAC |
Applicant
And
| TRESFOLD PTY LTD |
Respondent
REASONS FOR JUDGMENT
In these proceedings a bankruptcy notice was issued against one Vladimir Barac numbered NN1817/04 by the Official Receiver on
22 July 2004. It was served upon the applicant Vladimir Barac at his home at 5 Kingsland Road, Berala on 28 July 2004. It came to Mr Barac as something of a surprise. When he looked at the bankruptcy notice, and in particular the certificate of judgment attached, he noted that he had never had dealings with the creditor, nor did he owe the creditor $8736.90 or any money at all.
The applicant made some investigations. He discovered that the judgment to which I have just referred was obtained as a result of proceedings in the Local Court at Parramatta issued against Vladimir Barac of 36 Longfellow Street, Wetherill Park. The applicant has never resided in Wetherill Park, he has lived in Kingsland Road, Berala for over 20 years.
Sensibly, the applicant instructed a firm of solicitors to act on his behalf and to take the matter up with those acting for the issuer of the bankruptcy notice. There has been produced to me as Exhibit 1 in these proceedings a bundle of correspondence passing between the two firms. The applicant today sought from the solicitors for the issuer of the notice the withdrawal of the notice and also the withdrawal of a writ of execution which apparently had been issued as well. The "creditor's" solicitors resisted.
On 24 August 2004 this matter came before Registrar Hedge. At that time the applicant was represented by Mr Gruzman, as he is today, and the respondent by a Mr Thomas. I understand from Mr Gruzman that attempts have been made to find out whether Mr Thomas is associated in any way with the firm, Nemes Thomas & Co, Solicitors, that firm having as its principal Mr Peter A. Nemes. Mr Gruzman informs me that he has not met with any success in this regard.
Registrar Hedge adjourned the matter until today and extended the time for compliance with the bankruptcy notice. She also ordered that the respondent was to file and serve its evidence by 12 noon on 27 August and noted that indemnity costs were going to be sought. The respondent has not filed and served any evidence and has not attended before me today. I can only assume that the creditor has realised the error of its ways and that it has in fact taken bankruptcy proceedings against the wrong person. It would appear that it has also issued a writ of execution against the wrong person.
In these circumstances I would accede to Mr Gruzman's request that the bankruptcy notice be set aside and that the costs of the application be paid by the respondent on an indemnity basis.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 8 September
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