BMW Australia Finance Ltd v Geraerts
[2004] FMCA 1028
•13 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BMW AUSTRALIA FINANCE LTD v GERAERTS | [2004] FMCA 1028 |
BANKRUPTCY – Section 185T Bankruptcy Act 1966 – declaration – sequestration order.
| Bankruptcy Act 1966, ss.185Q, 185T |
| Applicant: | BMW AUSTRALIA FINANCE LTD (ACN 007 101 715) |
| Respondent: | NIELS FRANCIS GERAERTS |
| File No: | MLG 1301 of 2004 |
| Delivered on: | 13 December 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 13 December 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr. P. Fary |
| Solicitors for the Applicant: | Mills Oakley Solicitors |
| Respondent: | In Person |
ORDERS
(1)Pursuant to s.185T of the Bankruptcy Act 1966 (the Act),
I declare that the Respondent's debt agreement under Part IX of the Act entered on the insolvency index on 5 August 2004 be declared void.(2)A Sequestration Order made against the estate of NEILS FRANCIS GERAERTS.
(3)The Applicant's costs (including reserved costs, if any) of this application be paid in priority from the respondent's bankrupt estate, in accordance with the Act.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1301 of 2004
| BMW AUSTRALIA FINANCE LTD (ACN 007 101 715) |
Applicant
and
| NEILS FRANCIS GERAERTS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application by BMW Australia Finance Ltd ("the applicant") against Neils Francis Geraerts ("the respondent"). The application had originally sought orders pursuant to s.185Q of the Bankruptcy Act 1966 (the Act), terminating the respondent's debt agreement under Part IX of the Act, entered into on the insolvency index on 5 August 2004. Alternatively, the original application sought an order pursuant to s.185T of the Act, declaring the respondent's said debt agreement void, and thirdly a sequestration order be made against the insolvent estate of the respondent, and fourthly an order that the applicant's costs of this application be paid in priority from the respondent's bankrupt estate.
The application had been listed before the court on a previous occasion and was adjourned from 22 November to this day, to enable further material to be filed for and on behalf of the applicant.
The respondent, who appears in person, has indicated that he does not oppose an application, relying as it does upon s.185T of the Act. He has asserted from the bar table, without evidence that any order in relation to sequestration of his estate would have a dramatic and significant impact upon his capacity to earn income as a real estate agent. He has otherwise asserted, again from the bar table, that although his statement of affairs (Exhibit A1) has no mention of any debt to the applicant, this can be explained on the basis that he felt at the time that any debt to the applicant had been the subject of an agreement or arrangement, and as I understand it asserts from the bar table that he did not in the circumstances feel it was appropriate to include a reference to the applicant in that statement of affairs.
Section 185T of the Act provides:
Applying for an order declaring a debt agreement void
Persons who may apply for an order
(1) The debtor (or the debtor's personal representative if the debtor has died), a creditor or the Official Receiver may apply to the Court for an order declaring that all, or a specified part, of a debt agreement is void.
Grounds for applying for an order
(2)A person mentioned in subsection (1) may apply for an order only if:
(a) there is doubt on a specific ground that all or part of the debt agreement was not made in accordance with this Part or does not comply with this Part; or
(b)the statement of affairs lodged with the debt agreement was deficient because it omitted a material particular or because it was incorrect in a material particular.
Time limit on applying for an order
(3)A person cannot apply for an order declaring a debt agreement void after all the obligations created by the agreement have been discharged.
Simultaneous application for a sequestration order
(4) A creditor may include an application for a sequestration order in an application for an order declaring all or part of a debt agreement void.
Effect of applying for a sequestration order
(5)For the purposes of this Act, making an application for a sequestration order under subsection (4) is taken to be presenting a creditor's petition against the debtor, but subsection 43(1), sections 44 and 47, subsections 52(1) and (2) and Part XIA do not apply in relation to the application.
Mr. Fary for the applicant has indicated that his instructions are to proceed with the application, relying upon s.185T. He does so on what now appears to be the uncontradicted evidence that the debt to the applicant was not included in the statement of affairs. It seems clear to me that in the circumstances the provision has been complied with in terms of the applicant's proof and from the material before the court that this is a case where it is appropriate to then proceed with the further remedy of a sequestration order.
I am satisfied on the material before me, including the affidavit of Peter Malcolm Stockdale sworn 7 October 2004, together with the other material which has been relied upon by way of submissions from Mr Fary of counsel for the applicant, that there is a sufficient basis upon which the court can make the orders sought, relying upon s.185T of the Act.
The respondent, although again from the bar table and in the absence of any sworn evidence, has indicated perhaps a willingness or preparedness to seek to enter into an arrangement with the applicant, but that is not a matter which the court can take into account at this stage and nor is it appropriate in my view, in the absence of any further material, to further delay the application in circumstances where the applicant seeks to proceed and does so on the basis, properly in my view, of s.185T of the Act.
Accordingly the Court makes the following orders:
(1)Pursuant to s.185T of the Bankruptcy Act 1966 (the Act), I declare that the Respondent's debt agreement under Part IX of the Act entered on the insolvency index on 5 August 2004 be declared void.
(2)A Sequestration Order made against the estate of NEILS FRANCIS GERAERTS.
(3)The Applicant's costs (including reserved costs, if any) of this application be paid in priority from the respondent's bankrupt estate, in accordance with the Act.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate: Brooke Evans
Date: 13 December 2004
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