CGU Workers Compensation v Tokich
[2005] FMCA 705
•17 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CGU WORKERS COMPENSATION v TOKICH | [2005] FMCA 705 |
| BANKRUPTCY – Application to oppose petition – where applicant fails to establish the invalidity of a bankruptcy notice – use of rubber stamp signature. |
| Federal Court Act and Rules Bankruptcy Act 1966, s.52 |
| Prudential-Bache Securities (Australia) Ltd v Warner [1999] FCA 1143 |
| Applicant: | CGU WORKERS COMPENSATION (NSW) LIMITED |
| Respondent: | ROBERT TOKICH |
| File Number: | SYG 157 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 17 May 2005 |
| Date of Last Submission: | 17 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr J Johnson |
| Solicitors for the Respondent: | P H Legal |
ORDERS
A Sequestration Order be made against the estate of Robert Tokich.
The applicant Creditor’s costs, including any reserved costs, be taxed in accordance with the Federal Court Act and Rules and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966 (Cth).
The costs of Mr Phillip Yip in the sum of $400.00 be included in the costs of the Applicant.
Mr Scott Darren Pascoe be appointed as Trustee.
Note:
The Court notes that the date of the act of Bankruptcy is 23 December 2004.
A copy of this order is to be provided to the Official Receiver in Sydney within 2 days after the order is entered.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 157 of 2005
| CGU WORKERS COMPENSATION (NSW) LIMITED |
Applicant
And
| ROBERT TOKICH |
Respondent
REASONS FOR JUDGMENT
The proceeding before me today is the adjourned hearing of a bankruptcy petition that was presented on 19 January 2005. The petition sought a sequestration order against the respondent on the grounds that the respondent owed it $8,134.05 being the balance of a final judgment awarded in the Local Court at Sydney on 20 May 2004 together with interest thereon. The act of bankruptcy asserted in the petition was that the respondent debtor had failed on or before
23 December 2004 to comply with the requirements of a Bankruptcy Notice served on him on 25 November 2004 and deemed served on
2 December 2004 pursuant to an order for substituted service made by Registrar Segal on 24 November 2004 or to satisfy the court that he had a counter-claim set off or cross demand equal to or exceeding the sum specified in the Bankruptcy Notice.
The proceedings before this court have been somewhat protracted. Mr Tokich has filed several affidavits in an attempt to resist a sequestration order. When the matter first came on before me for hearing there were two points in contention. They both related to the use of a rubber stamp as the signature of Phillip Yip on the Bankruptcy Notice where at page 7 it is said:
“The person who applied for this notice to be issued is:
Phillip Yip
who confirms by the following signature that he is the creditor's authorised agent.”
[signature of Phillip Yip]
The first point Mr Tokich made about this signature was that it had been affixed by the use of a rubber stamp and the second point which he made about it was that the person who had fixed it by way of the rubber stamp was not authorised to do so.
During the course of the first day of hearing, I referred Mr Tokich to certain authorities, in particular Prudential-Bache Securities (Australia) Ltd v Warner [1999] FCA 1143. It appeared to indicate that the use of the rubber stamp for a person's signature does not constitute a failure to comply with the act or regulations under which Bankruptcy Notices are mandated. Mr Tokich considered the authorities and advised me that he no longer wished to take that point.
The second point, the lack of authority on the part of Ms Lu, was taken and was the subject of considerable evidentiary consideration. There were problems because Mr Tokich sought to establish his submission by the use of subpoenas upon various persons either in the employ of the applicant or its Mercantile agents or Phillip Yip. Mr Tokich, who is appearing in person, had difficulty in understanding the requirements for the issue of a subpoena and the matter had to come back before me on occasion so that the subpoenas could be appropriately issued.
Mr Tokich sought at the hearing of the petition to cross-examine a witness from the applicant, Ms Thomas, and there was some delay in bringing her to court. He also sought to examine witnesses involved in the issue of the bankruptcy proceedings. They were Ms Heng, the proprietor of the collection agency through whom the applicant worked, and Mr Yip. On the first day of the hearing on 3 May 2005
I also heard evidence from Ms Lu.
The evidence which I heard revealed the following facts: CGU operates through a panel of collection agents in order to collect debts owed to it for outstanding workers compensation premiums. One of those collection agents was a business known as PH Collections.
PH Collections was, at the relevant time, owned by Ms Heng. It shared an office with Phillip Yip and Associates. CGU gives instructions to the collection agent and the collection agent then takes responsibility for instructing solicitors if that is required. CGU would be asked to swear the necessary affidavits as the creditor but otherwise the matters are out of their hands.
PH Collections employed Ms Heng the principal and also at the relevant time, which was July 2004, employed a solicitor Vivien Lu part time. The balance of Ms Lu's employment was in the office of Phillip Yip. It was as an employee of Phillip Yip that she utilised his stamp to sign the bankruptcy notice in the manner which I have described earlier in these reasons. Mr Yip has confirmed that she was authorised to do this and that she was acting as his employed solicitor when it was done. These facts are clear from the affidavit evidence and from the limited cross-examination that Mr Tokich was allowed to conduct and from the examination in chief that he conducted of those witnesses who he had subpoenaed. Mr Tokich does not accept that this was the situation, he believes it was otherwise. Unfortunately for him he has been unable to establish those matters which he submits were the real facts to my satisfaction or indeed at all. He accepts that he has not been able to prove these matters although he believes he can do so in another place. That, of course, is his prerogative.
Because I am satisfied that Ms Lu was authorised to affix Mr Yip's signature stamp to the bankruptcy notice there are no matters upon which the bankruptcy notice is impugned. Mr Tokich has not made any claim concerning service, although I note this might be difficult as substituted service was required. He has not alleged that he has a cross-claim, cross-demand or set-off and he has not maintained that he is solvent or that there are any other reasons why the court should exercise its discretion not to make a sequestration order.
I am satisfied that the debtor committed the act of bankruptcy alleged in the petition. I am satisfied with the proof of the other matters required by s.52 of the Bankruptcy Act 1966, noting that Mr Johnson, who appears on behalf of the creditor, filed with me certain affidavits at the commencement of these proceedings and again today filed affidavits of final debt and final search. I make a sequestration order against the estate of Robert Tokich. I note that consent to act as trustee dated 17 January 2005 has been signed by Scott Darren Pascoe and I appoint Mr Pascoe as the trustee. I order the applicant's costs including any reserved costs be taxed in accordance with the Federal Court Act and Rules be paid from the estate of the respondent debtor in accordance with the Act. In respect of the current proceedings I order that the respondent debtor pay the sum of $400.00 being the expenses of Mr Phillip Yip for appearing in court this morning. Under the Bankruptcy Regulations a copy of the sequestration order must be given to the official receiver in Sydney within 2 days. The court notes the date of the act of bankruptcy is 23 December 2004.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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