Commonwealth Bank of Australia v A Boumelhem (No.2)
[2008] FMCA 995
•11 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COMMONWEALTH BANK OF AUSTRALIA v A. BOUMELHEM (No.2) | [2008] FMCA 995 |
| BANKRUPTCY – Application for adjournment of petition – where adjournment previously granted and debtors did not appeal decision – sequestration order. |
| Bankruptcy Act 1966, s.52 |
| Ahern v Deputy Commissioner of Taxation (1987) 76 ALR 137 Adamopolous v Olympic Airways SA (1990) 95 ALR 525 |
| Applicant: | COMMONWEALTH BANK OF AUSTRALIA |
| Respondent: | AMIN BOUMELHEM |
| File Number: | SYG 3647 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 11 July 2008 |
| Date of Last Submission: | 11 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aspinall |
| Solicitors for the Applicant: | Henry Davis York |
| Solicitors for the Respondent: | V.F. Stanizzo Lawyers |
ORDERS
A Sequestration Order be made against the estate of AMIN BOUMELHEM.
The applicant creditor’s costs (including reserved costs, if any) be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.
The Court notes that the date of the act of bankruptcy is 11 October 2006 and that Mark Robinson of PPB has been appointed to act as trustee.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3647 of 2006
| COMMONWEALTH BANK OF AUSTRALIA |
Applicant
And
| AMIN BOUMELHEM |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant creditor seeks a sequestration order against the estates of Amin and Jamal Boumelhem on the basis of a bankruptcy petition that was presented to this court on 7 December 2006. The matter has been before me on several occasions and there are a number of previous judgments. In short, the applicant bank proceeds upon a judgment obtained in the Supreme Court of New South Wales on 9 December 2004. The debt was secured upon a property owned by the debtors. Eventually the property was sold, and the money claimed in the bankruptcy notice which founded the petition represents the balance owing after the security was disposed of.
The debtors sought to resist the petition on the basis of a claim that the property was sold at an under value. I granted the debtors an adjournment of the petition so that this claim could be argued in the District Court of New South Wales. It was so argued, unsuccessfully. The debtors have appealed that decision. The matter came before me on 13 June 2008 for the hearing of the petition, which the debtors resisted. For the reasons given in my judgment of that day (Commonwealth Bank of Australia v Amin Boumelhem [2008] FMCA 789) I indicated that I was only prepared to grant one further adjournment of the matter, which was until today. It should have been clear from that judgment that if the debtors did not agree with the views that I had expressed, they could have appealed it and sought from the Full Bench the further time that I had declined to give them. No appeal was lodged, although I was shown today some application to the Federal Court for a stay of the bankruptcy proceedings and any sequestration order that I might make. This application was filed yesterday, even though the applicant had had since 13 June 2008.
Mr Badarne, who appears on behalf of the debtors, has asked me to provide them with a further adjournment. He says that no disadvantage will come to the creditor and refers me to Ahern v Deputy Commissioner of Taxation (1987) 76 ALR 137 and Adamopolous v Olympic Airways SA (1990) 95 ALR 525. These cases are authority for the proposition that a court in bankruptcy should not proceed to sequestrate the estate of the debtor where an appeal is pending on the judgment founding the bankruptcy notice, provided that the appeal is based on genuine and arguable grounds. I accept this principle. Indeed, it was an extension of it that persuaded me to give the debtors the first lengthy adjournment pending the hearing of the District Court proceedings. But it is not to be forgotten that the appeal that the debtors seek to use as reason for me not proceeding today to sequestrate their estates is not an appeal against the judgment upon which the bankruptcy notice was founded; it is an appeal against a decision in a very late cross-claim. For that reason, I would distinguish those cases.
Today Mr Aspinall has provided me with the required evidence that the provisions of s. 52 of the Bankruptcy Act 1966 (the “Act”) have been complied with. I am satisfied that the debtors 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 Act. For the reasons given in this judgment, and in the judgment of 13 June 2008, I am also satisfied that there are no other reasons why the sequestration order should not be made. I make a sequestration order against the estates of Amin and Jamal Boumelhem. I order that the applicant creditor's costs, including any reserved costs, be taxed in accordance with the Federal Magistrate Court (Bankruptcy) Rules 2006 and paid for from the estate of the respondent debtors in accordance with the act. The court notes that the date of the act of bankruptcy is 11 October 2006. I note that a consent to act as trustee has been signed by Mark Robinson and has been lodged with the Official Receiver in Sydney.
I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 16 July 2008
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