Barry v Wallum Nurseries Pty Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARRY v WALLUM NURSERIES PTY LTD [2002] FMCA 323

BANKRUPTCY – Review of Registrar’s decision to sequestrate – whether applicant is solvent – whether stay should be granted to allow refinancing – where neither petitioning nor supporting creditor wish to allow stay – application dismissed.

Federal Magistrates Act 1999, s.104(2)
Bankruptcy Act 1966 (Cth), ss.52, 52(2)(a), 109(1)(a), 153B

Martin v Commonwealth Bank of Australia (2001) FCA 87
Lawman v Queensland Building Services Authority [199] FCA 1781
International Alpaca Management Pty Limited v Ensor [1999] FCA 72

Applicant: EMMA JAYNE BARRY

Respondent: WALLUM NURSERIES PTY LIMITED
ACN 086 722 456

File No: SZ 1268 of 2002

Delivered on: 11 December 2002

Delivered at: Sydney

Hearing Date: 10 December 2002

Judgment of: Raphael FM

REPRESENTATION

Solicitors for the Applicant: Sally Nash & Co

Counsel for the Respondent: Mr J Deane

Solicitors for the Respondent: Jones King

ORDERS

1. Application for review dismissed.

2. Respondent’s costs to be paid from estate of the bankrupt pursuant to s.109(1)(a) of the Bankruptcy Act pursuant to the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1268 of 2002

EMMA JAYNE BARRY

Applicant

And

WALLUM NURSERIES PTY LIMITED
ACN 086 722 456

Respondent

REASONS FOR JUDGMENT

1. On 22 November 2002 a sequestration order was made against the applicant by a Registrar of this court sitting in Brisbane. The applicant, who was not present at the hearing of the petition, seeks a review of the decision of the Registrar pursuant to s 104(2) of the Federal Magistrates Act. It is not disputed that the application for review is in time. The applicant sought as an alternative to a review an annulment of the sequestration order and as a further alternative a stay of the order for a period of twenty-one days from 22 November 2002.

2. At the commencement of the proceedings I made an order as follows:

   “Order that File BZ 520 of 2002 be transferred to Sydney and amalgamated with File SZ 1268 of 2002.”

3. The orders sought by the applicant are set out above in the order of priority put to me by the applicant’s advocate.  I informed the parties that I would treat the matter as a review because it appeared to me that this offered the most advantages to the applicant.  Firstly, the matter would be heard de novo (Martin v Commonwealth Bank of Australia [2001] FCA 87 and this would allow the applicant to put forward the evidence contained in her affidavit dated 5 December 2002 filed with the application. It would also relieve the applicant of the requirements contained in the rules for notification of creditors and obtaining of a trustee’s report that accompany an application for annulment under s 153B. So far as the creditor is concerned a review allowed it to make reference to the existence of a supporting creditor who had entered an appearance in these proceedings but not in the previous proceedings. As I understood the submissions being made by…