CLEASBY v Nazor

[2015] FCCA 2894

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLEASBY v NAZOR [2015] FCCA 2894

Catchwords:
BANKRUPTCY – Sequestration order made by a Registrar – application for review of Registrar’s order.

Applicant: COLIN CLEASBY

Respondent: ANTE NAZOR

File Number: SYG 1061 of 2015

Judgment of: Judge Cameron

Hearing date: 23 October 2015

Date of Last Submission: 23 October 2015

Delivered at: Sydney

Delivered on: 23 October 2015

REPRESENTATION

Solicitors for the Applicant: Mr J. Hui of Gordon Wells & Co

The Respondent appeared in person

ORDERS

1. The application for review of the Registrar’s order made on 17 August 2015 be dismissed.

2. The respondent pay the applicant’s costs fixed in the amount of $1,050.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1061 of 2015

COLIN CLEASBY

Applicant

And

ANTE NAZOR

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of Registrar Segal made on 17 August 2015 that the estate of the respondent, Mr Nazor, be sequestrated.  In support of his application for review, which was filed on 3 September 2015, Mr Nazor has filed three affidavits. 

2. The history of the underlying debt appears to be that Mr Nazor was involved in the performance of certain building work at the home of the creditor, Mr Cleasby.  Some dispute arose.  The matter then proceeded to the Consumer, Trader & Tenancy Tribunal of NSW (“CTTT”), where Mr Nazor was unsuccessful.  He appealed that decision to the District Court of NSW and in December 2014 Judge Letherbarrow dismissed the appeal.  The material which Mr Nazor relies upon in his application for review of the Registrar’s decision includes material which was before Judge Letherbarrow. 

3. Today, Mr Nazor has raised two matters in support of his application for review of the Registrar’s decision. 

4. The first was that he had never been served with the bankruptcy notice underlying the creditor’s petition.  Registrar Segal was plainly satisfied that service of the bankruptcy notice had been effected properly and, having had regard to the relevant statutory and regulatory provisions and to the affidavit of service of Frank Hoare sworn on 26 March 2015 and filed earlier in these proceedings, I too am satisfied that the bankruptcy notice was properly served. 

5. The other issue raised by Mr Nazor in his application for review is essentially whether or not there was a debt underlying the bankruptcy notice.  In this connection I have regard to the fact that Mr Nazor appears not to have put before the Court in support of that application any material relevant to that issue which was not before Judge Letherbarrow in the District Court.  I also note in that connection that although Mr Nazor is not represented today, he was represented before the District Court.  I have not been provided with a copy of the reasons for judgment of Judge Letherbarrow but it has not been suggested that his Honour did not consider all the material which was placed before him. 

6. Mr Nazor presently seeks to obtain some form of review in the Supreme Court of NSW in connection with the underlying debt and presumably this implies some criticism of Judge Letherbarrow’s judgment.  However, it should be noted in this regard that the proposed summons which Mr Nazor wishes to file in the Supreme Court is a summons in its supervisory jurisdiction which appears to seek review of the CTTT decision rather than of the District Court judgment.  Whether or not that is the correct approach I do not know, but the point seems to me to be this: the summons for review which Mr Nazor seeks to file in the Supreme Court, to whose filing I note his trustee has not given consent, does not appear to raise any issues which were not considered by Judge Letherbarrow. 

7. In circumstances where really all Mr Nazor is seeking to do is to re-ventilate issues which appear to have been settled finally in the judgment of Judge Letherbarrow and where Mr Nazor has not sought to identify errors in his Honour’s judgment, it is not apparent to me that there is any reason to doubt the correctness of the Registrar’s decision to make an order sequestrating Mr Nazor’s estate. 

8. I would also note that the original CTTT decision was made in 2011 and that Judge Letherbarrow’s decision was made in December 2014, some 10 months ago.  In addition to any hurdles which Mr Nazor might have as to the merits of his application, he would also have to obtain leave to bring the proceeding out of time – presenting an additional hurdle to the success of such an application. 

9. In all the circumstances, I am not persuaded that it is appropriate to set aside the Registrar’s order.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  28 October 2015