COCA-COLA Amatil (Aust) Pty Ltd v Tawhai; and Ors
[2009] FMCA 1235
•4 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COCA-COLA AMATIL (AUST) PTY LTD v TAWHAI & ORS | [2009] FMCA 1235 |
| BANKRUPTCY – Amendment of name of bankrupt shown in sequestration order – debtor also known by other name shown in land title. |
| Bankruptcy Act 1966 (Cth), ss.37(1), 37(2), 109(1)(a) Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) |
| Applicant: | COCA-COLA AMATIL (AUST) PTY LTD ACN 076 594 119 |
| First Respondent: | CONDOR THOMAS BRADLEY TAWHAI |
| Second Respondent: | PERCY WILLIAMS AKA PERCY WILLIAM BRIND HOUSE |
| Third Respondent: | TERESSA LENA MCELLIGOTT AKA TESS MCELLIGOTT |
| Fourth Respondent: | TRAVIS DAVID MCELLIGOTT |
| File Number: | SYG2873 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 4 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 4 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Rolfe of Sydney Mentions Practice (agent) |
| Solicitors for the Applicant: | Aston Reid Lawyers |
| Counsel for the Second Respondent: | No appearance by or on behalf of the Second Respondent |
ORDERS
Order 1 made on 31 January 2008 is varied pursuant to s.37(1) of the Bankruptcy Act 1966 (Cth) by adding “also known as Percy William Brind House” after the name “Percy Williams”, and the name of the second respondent is amended by the addition of those words.
The applicant must within 2 days serve a copy of this order by registered post on the second respondent at his address for service last known to his trustee in bankruptcy.
The applicant must within 2 days serve a copy of this order on the trustee and the Official Receiver for the District of NSW.
The applicant’s costs of this application are to be taxed pursuant to the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) and paid from the estate of the second respondent in the priority fixed by s.109(1)(a) of the Bankruptcy Act 1966 (Cth).
The second respondent and any other person interested in the matter has liberty to apply to the Court to vary or discharge this order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2873 of 2007
| COCA-COLA AMATIL (AUST) PTY LTD ACN 076 594 119 |
Applicant
And
| CONDOR THOMAS BRADLEY TAWHAI |
First Respondent
| PERCY WILLIAMS AKA PERCY WILLIAM BRIND HOUSE |
Second Respondent
| TERESSA LENA MCELLIGOTT AKA TESS MCELLIGOTT |
Third Respondent
| TRAVIS DAVID MCELLIGOTT |
Fourth Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an interim application brought on a document headed “Notice of Motion”, in proceedings in which four people were the subject of a bankruptcy petition as proprietors of a business owing a debt to Coca‑Cola Amatil (Aust) Pty Ltd. The name of the second respondent was shown in the petition, and in the sequestration order which was made on 31 January 2008, as “Percy Williams”. The interim application now seeks a variation of the sequestration order to include his full name, “Percy William Brind House”.
After some adjournments, I am now satisfied that the interim application, the affidavit in support, and my last court order appointing a hearing today, have been sufficiently served on that person at his address last known to his trustee in bankruptcy. That address is also the address of a property in Alice Springs, on whose title the trustee wishes to lodge a caveat so as to record the interest of the bankrupt estate over any equity in that property remaining in the second respondent. The title shows one of the co‑owners as “Percy William Brind House”.
For the reasons which follow, I am satisfied that the second respondent has, in fact, held himself out as being the person named in the title, and that this is the same person against whom the indebtedness giving rise to the sequestration order relates.
The indebtedness arises from a commercial credit account application to Coca‑Cola in the name of a business called “Managerial Solutions”, with an address at a university coffee shop in Alice Springs. The commercial credit application listed the names of four proprietors of the business, with the first being named as “Percy House” at “2 Carruthers Cres”. It would seem that a business names search for “Managerial Solutions” was performed on the business names register, and this showed this person’s name was “Percy Williams” at that address. It was under this name that Coca‑Cola obtained the judgement debt giving rise to an act of bankruptcy, and brought the petition upon which the sequestration order was made against the second respondent.
However, further investigations have now discovered the application for the registration of the business name as completed by the four proprietors. In this, the relevant person was described somewhat illegibly as “Percy William Brind House” at “2 Carruthers Cres, Alice Springs”. This full name appears on the page on which the signatories of the four people appear. It is dated May 2004, and in my opinion it provides excellent evidence of the full name of the person against whom the sequestration order was intended to be made, and was made. It is also, as I have noted, the full name of a co‑owner shown on the property register for 2 Carruthers Crescent. The second respondent has not appeared nor presented any evidence in opposition to the making of that finding.
The Court has express power under s.37(1) of the Bankruptcy Act 1966 (Cth) to vary a sequestration order, even after entry, other than by rescinding or discharging that order (see s.37(2)).
I am satisfied in the present case that it is appropriate to vary the name of the second respondent shown in the proceedings and in the sequestration order, so as to include a reference to his also being known as “Percy William Brind House”. This will allow the administration of his estate to proceed in a manner appropriate under the Act. My order will not have the effect of altering the true ownership situation in relation to the house at 2 Carruthers Crescent, in so far as the interests of security holders and co‑owners are concerned.
I note that the petitioner does not appear to have been responsible for the confusion as to the second respondent’s name in its records and in the subsequent court proceedings, and that these appear to arise from a clerical error in the publication of the business names register in the Northern Territory. I therefore consider that a costs order should be made in favour of the petitioner in relation to its costs of the present application, and that those costs should be recoverable from the bankrupt estate in the same manner as its costs of the petition.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 18 December 2009
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