Bruin v Hutton

[2008] FMCA 1482

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRUIN & ANOR v HUTTON & ANOR [2008] FMCA 1482

BANKRUPTCY – Application for review of Registrar’s order – sequestration order made.

Bankruptcy Act 1966, s.52

First Applicant: PAUL BRUIN

Second Applicant: CATHERINE CHRISTINE BRUIN

First Respondent: NOEL HUTTON

Second Respondent: KIT HOME SOLUTIONS

File Number: BRG 995 of 2007

Judgment of: Wilson FM

Hearing date: 17 October 2008

Date of Last Submission: 17 October 2008

Delivered at: Brisbane

Delivered on: 17 October 2008

REPRESENTATION

Counsel for the Applicants: Mr J Selfridge

Solicitors for the Applicants: Brett Smith & Co Solicitors

No appearance by or on behalf of the Respondents N/A

ORDERS

1. The Order made by Registrar Baldwin on 17 September 2008 is set aside.

2. A Sequestration Order be made against the estate of NOEL HUTTON.

3. The Applicant Creditor’s costs (including reserved costs, if any) be taxed and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.

The Court notes that the date of the act of bankruptcy is 16 August 2008.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 995 of 2007

CATHERINE CHRISTINE BRUIN

First Applicant

PAUL BRUIN

Second Applicant

And

NOEL HUTTON

First Respondent

KIT HOME SOLUTIONS

Second Respondent

REASONS FOR JUDGMENT

1. On 17 September 2008 Registrar Baldwin made an order dismissing a creditors' petition.  She did so on the basis that the bankruptcy notice was fatally flawed in that an assessment of damages consequent upon a judgment was not attached to it.

2. The applicants obtained judgment against the respondent Noel Hutton in the District Court of Queensland at Ipswich on 22 March 2007 for damages to be assessed.  The Court file copy of the bankruptcy notice attaches a notice of that judgment, but not the subsequent assessment of damages.  Damages were subsequently assessed in the sum of $54,423.35 on 22 June 2007.  The applicant's solicitor has sworn that the assessment was attached to the bankruptcy notice served on the respondent.

3. The affidavit of Alan Green, who served the respondent Hutton with both the bankruptcy notice and the creditors' petition and associated documents exhibits a copy of the bankruptcy notice that also omits the assessment of damages document.  Oral evidence was adduced today from Mr Green that in fact the document that he served had attached to the bankruptcy notice the assessment of damages.

4. An application for review of the order of the Deputy Registrar was filed within time.  On the hearing of an application for review the Court acts de novo and may receive further evidence that was not before the Deputy Registrar.  The matters that caused the Deputy Registrar to, in my view, properly dismiss the creditors' petition has now been supplemented to correct the error of the solicitor for the applicants.

5. The applicants have otherwise satisfied the Court of the matters required in s.52(1) of the Bankruptcy Act in that affidavit evidence has now been adduced that the debt is still owing and that no other proceedings have been brought against the respondent Hutton pursuant to the Bankruptcy Act. The respondent Hutton did not appear when the matter was called today.

6. In light of the further evidence that has been adduced I set aside the order of the Registrar made on 17 September 2008, and will make a sequestration order.

7. The Court notes that the date of active bankruptcy is 16 August 2007.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Wilson FM

Deputy Associate: Kelt Wright

Date:  7 November 2008