Burwell Technologies Pty Ltd v Hayward

[2007] FMCA 615

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BURWELL TECHNOLOGIES PTY LTD v HAYWARD [2007] FMCA 615

BANKRUPTCY – Sequestration order – nature of the affidavit verifying the creditor’s petition raises the difficult issue of whether there has been adequate compliance with provisions of section 52(1)(a) of the Bankruptcy Act.

Bankruptcy Act 1966 (Cth)
Evidence Act 1995 (Cth)

Re a debtor; Ex parte debtor [1935] Ch 353
Re Riggs; Ex parte Commissioner of Taxation (1986) 9 FCR 149
Trojan v Corporation of Hindmarsh (1987) 16 FCR 37
Re Lakatos; Ex parte Lakatos v Deputy Commissioner of Taxation (1996) 33 ATR 145
Sandell v Porter (1966) 115 CLR 666
Lewis (as liquidator of Doran Constructions Pty Ltd) v Doran [2005] NSWCA 243
Jones v Dunkel (1959) 101 CLR 298
Cain v Whyte (1933) 48 CLR 639
Re Noye; Ex parte Deputy Federal Commissioner of Taxation (1956) 18 ABC 77

Applicant: BURWELL TECHNOLOGIES PTY LTD ACN 001 262 013 T/AS BURWELL ABRASIVE BLASTING EQUIPMENT

Respondent: ANTHONY HEATH HAYWARD T/AS ULTIMATE SPRAYED PROTECTIVE COATINGS & ANDREA LYNETTE TIDMARSH T/AS ULTIMATE SPRAYED PROTECTIVE COATINGS

File number: BRG 959 of 2006

Judgment of: Burnett FM

Hearing date: 14 February 2007

Date of last submission: 14 February 2007

Delivered at: Brisbane

Delivered on: 2 May 2007

REPRESENTATION

Solicitors for the Applicant: Gregg Lawyers

The Respondent appeared on his own behalf

ORDERS

1. A sequestration order be made against the estate of Anthony Heath Hayward T/A Ultimate Sprayed Protective Coatings and Andrea Lynette Tidmarsh T/A Ultimate Sprayed Protective Coatings

2. The Applicant’s costs of and incidental to the petition including reserved costs, if any, be taxed in accordance with the Federal Court Rules and paid from the estate of the Respondent in accordance with the Bankruptcy Act 1966.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 959 of 2006

BURWELL TECHNOLOGIES PTY LTD T/A BURWELL ABRASIVE BLASTING EQUIPMENT

Applicant

And

ANTOHNY HEATH HAYWARD T/A ULTIMATE SPRAYED PROTECTIVE COATINGS & ANDREA LYNETTE TIDMARSH T/A ULTIMATE SPRAYED PROTECTIVE COATINGS

Respondents

REASONS FOR JUDGMENT

1. In this application the petitioner creditor applies for sequestration of the estates of Anthony Heath Hayward and Andrea Lynette Tidmarsh who both trade as Ultimate Sprayed Protective Coatings. In the petition the Applicant alleges that the Respondents owe it a sum of $12,586.76 being monies owing under judgment given in the Townsville Magistrates Court on 22 May 2006. Further it alleges the Applicant does not hold security over the property of the Respondents and finally that at the time when the alleged act of bankruptcy was committed:

   a)were personally resident in Australia;

   b)were ordinarily resident in Australia;

   c)had a dwelling house or place of business in Australia; and

   d)were carrying on business in Australia either personally or by an agent or manager; and

   e)were members of a firm or partnership carrying on a business in Australia by means of partners or agents or managers.

2. In the affidavit verifying the creditor’s petition sworn by Venerando Grasso deposes to those matters.  However it also appears from Mr Grasso’s affidavit verifying the creditor’s…