City of Monash v O'Bryan

[2008] FMCA 513

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CITY OF MONASH & ANOR v O'BRYAN [2008] FMCA 513

BANKRUPTCY – Application for sequestration order – costs – application that the creditor’s petition be dismissed – application by debtor for transfer to Federal Court to determine constitutional issues – no proper basis for opposition to creditor’s petition – sequestration order made.

Bankruptcy Act 1966

First Applicant: CITY OF MONASH

Second Applicant: OLGA SARAH KOSKIE

Respondent: DARRYL MARK O'BRYAN

File Number: MLG 170 of 2008

Judgment of: Burchardt FM

Hearing date: 7 April 2008

Date of Last Submission: 7 April 2008

Delivered at: Melbourne

Delivered on: 7 April 2008

REPRESENTATION

Counsel for the Applicants: Mr Baker

Solicitor for the Applicants: Macpherson + Kelley

The Respondent: In person

ORDERS

1. A Sequestration Order be made against the estate of Darryl Mark O’Bryan. 

2. The Applicant Creditor’s costs be taxed in accordance with the Federal Court Rules and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966. 

3. The Court notes that the date of the act of bankruptcy is 8 February 2008.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 170 of 2008

CITY OF MONASH

First Applicant

OLGA SARAH KOSKIE

Second Applicant

And

DARRYL MARK O'BRYAN

Respondent

REASONS FOR JUDGMENT
(Revised from Transcript)

1. In this matter the petitioning creditors are seeking the usual orders made to sequester the estate of Mr O'Bryan.  It is fair to say that materials filed by the creditors meet the formal requirements that the legislation provides. 

2. There is an affidavit of debt sworn on 26 March 2008 by Vanessa Imelda Plain and an affidavit of search sworn by Katrina Hyndman on 26 March 2008 that satisfy me that the sum of $13,271.20 under a judgment recovered in the County Court of Victoria on 15 November 2007 is unsatisfied.  Indeed, the submissions made by Mr O'Bryan himself make it plain that is the case. 

3. The other formal requirements as to the verification of the matters set out in paragraphs 1, 2, 3 and 4 of the bankruptcy notice have also been attested to in a manner that is perfectly acceptable and establishes the matters they are required to establish. 

4. The real issues arise out of the application made by Mr O'Bryan himself, which are articulated in undated application faxed to the Court, it would appear, on 2 February 2006, but I take it that may be some sort of error - and further articulated in his affidavit sworn on 31 January 2008. 

5. The substance of what Mr O'Bryan has asked the Court to do is that he wishes this case to be transferred to the Federal Court of Australia for determination of questions of law in respect of the constitution and that, alternatively, or perhaps cumulatively, the bankruptcy notice be set aside. 

6. It is apparent that last year a proceeding commenced by Mr O'Bryan and a community resource group, who were both named as plaintiffs, came before the County Court constituted by Judge Holt.  I have been shown in Court today by Mr O'Bryan a copy of the writ and it is clear beyond doubt that he was a named plaintiff in that matter, and he was the only human person so named. 

7. The resource group which was said to be the other plaintiff is not pleaded as having been incorporated and nor, from what I understand and Mr O'Bryan tells me, was it incorporated, and it is therefore no surprise that Judge Holt, having determined the issues against the plaintiffs, made an order against those persons named in the writ. 

8. Mr O'Bryan has assured me from the bar table that he was merely a spokesperson for a number of other persons who were involved in the proceeding, but the fact is they were not named in the writ and nor were they named, obviously, in the orders that flowed from the dismissal of the writ.

9. The judgment of the County Court has also been put before me and it shows a perfectly straightforward order that costs be taxed.  I note it was made on an own client basis and that was done by a Registrar, and that figure is what has given rise to the bankruptcy notice and now the creditors' petitions.  It is clear beyond doubt that the bankruptcy notice was not complied with, and therefore an act of bankruptcy was committed. 

10. The arguments sought to be raised in the writ are further perhaps exemplified, although not repeated, in a letter dated 15 November 2007 to the taxing Registrar of the County Court from Mr O'Bryan.  These raise a number of assertions as to the state of the law in relation to the exercise of what one might describe as State powers.  In substance, it is put I think that Judge Holt had no power to hear the case at all because of the way in which the federal constitution interacts with the existence of the States. 

11. The arguments are put in a confident way, but, in my view, they fail altogether to match the true state of law in this country.  It is clear that there is a debt.  It has not been paid.  All the technical issues necessary to support a creditor's petition are clearly established on the materials filed by the petitioning creditors with the Court.  I am going to make a sequestration order and the usual order as to costs, which is that they be dealt with as the Bankruptcy Act 1966 (“the Act”) requires. 

12. Formal orders will issue giving effect to these conclusions within the next day or so. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:  Brooke Evans

Date:  7 April 2008