CGU Workers Compensation v Tokich - [2005] FMCA 705

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CGU Workers Compensation v Tokich

Details

AGLC: CGU Workers Compensation v Tokich [2005] FMCA 705
Case: [2005] FMCA 705
Decision Date: 17 May 2005

CaseChat Overview and Summary

CGU Workers Compensation, the plaintiff, sought a sequestration order against Robert Tokich, the defendant, due to a dispute concerning unpaid workers' compensation claims. The matter was heard in the Federal Circuit Court of Australia. The plaintiff argued that the defendant had failed to pay the amounts owed under a workers' compensation policy, leading to the defendant's bankruptcy. The defendant did not contest the application, and the court was required to determine whether the defendant's financial obligations warranted the sequestration of his estate.

The court needed to decide if the defendant's financial liabilities justified the sequestration of his estate. Given the uncontested nature of the application and the defendant's failure to respond, the court considered whether the defendant's debts were such that sequestration would benefit creditors. The plaintiff provided evidence of unpaid compensation claims, and the court determined that these debts justified the sequestration of the defendant's estate.

The Federal Circuit Court of Australia found that the defendant's debts, as evidenced by the unpaid workers' compensation claims, warranted the sequestration of his estate. The court ordered the sequestration of the defendant's estate, appointed a trustee to manage the estate, and directed that the plaintiff's costs, including those of a solicitor, be paid from the defendant's estate. The court also mandated that a copy of the order be provided to the Official Receiver within two days of the order's entry.

The court's final orders included making a sequestration order against the defendant's estate, directing the costs of the plaintiff and the solicitor to be paid from the defendant's estate, and appointing a trustee to manage the estate. The court further instructed that a copy of the order be sent to the Official Receiver within the specified timeframe.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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