Construction Pacific Management v Bianco (No.1)
[2005] FMCA 459
•29 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CONSTRUCTION PACIFIC MANAGEMENT v BIANCO (No.1) | [2005] FMCA 459 |
| PRACTICE & PROCEDURE – Bankruptcy – admission of affidavit where respondent objects – whether the affidavit is of utility. |
| Applicant: | CONSTRUCTION PACIFIC MANAGEMENT PTY LIMITED |
| Respondent: | SERAFINO (PHIL) BIANCO |
| File Number: | SYG3338 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 29 March 2005 |
| Date of Last Submission: | 29 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 29 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Bouris |
| Solicitors for the Applicant: | Baron & Associates |
| Solicitors for the Respondent: | Proctor Phair Lawyers |
ORDERS
Application for leave to file affidavit refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3338 of 2004
| CONSTRUCTION PACIFIC MANAGEMENT PTY LIMITED |
Applicant
And
| SERAFINO (PHIL) BIANCO |
Respondent
REASONS FOR JUDGMENT
The respondent seeks to file an affidavit dated 29 March 2005 which is the day of the hearing and which was only provided to the respondent prior to the hearing. The affidavit is intended to provide corroboration of a statement made in an affidavit dated 14 March 2005 by the respondent in which he says that he has the ability to pay a loan which he believes he can take out on his assets because he earns in excess of $120,000 per annum as a builder and project manager.
The affidavit of 29 March seeks to exhibit three payroll advices. The first being said to be 9/03/2005 to 9/03/2005; the second 16/03/2005 to 16/03/2005; the third 23/03/2005 to 23/03/2005. They refer to a cheque dated on the date of each payroll advice and to sums being paid to the respondent by way of wages and overtime. There is a base wage said to be $1,634.62 per week which on my calculations is $84,864 a year. The overtime payments are stated on one advice to be approximately $612 and similarly on another. There is no overtime payment on the third. On the first two documents a PAYG withholding tax of $816 is referred to and on the third the sum of $518.02 is referred to.
Mr Bouris for the applicant objects to this affidavit being read. He says that he suspects that the company whose payroll advice it allegedly is may be connected with the applicant, but he has had no time to check that out. The affidavit has taken him by surprise. I am sympathetic to that argument. I also have concerns about this document. I wonder how useful it can be to me as it only deals with three weeks and it does not indicate an earning of $120,000 per annum at all, it indicates a lesser sum, both net and gross. As mortgage repayments are made from net wages it seems to me that Mr Serafino Bianco would have difficulty in satisfying me that he was a man in possession of $120,000 for payment of the mortgage interest as alleged. I am disinclined to admit this affidavit and will not do so.
I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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