Corbett v Carlson
[2011] FMCA 436
•24 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CORBETT v CARLSON | [2011] FMCA 436 |
| BANKRUPTCY – Hearing of petition – where debtor is overseas and conducts a hearing at the telephone – where no evidence to support grounds of opposition provided. |
| Bankruptcy Act 1966 (Cth), s.52 Federal Magistrates Court (Bankruptcy) Rules 2006 |
| Applicant: | ASHLEY JAMES CORBETT |
| Respondent: | JAMES ERNEST CARLSON |
| File Number: | SYG 68 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 24 May 2011 |
| Date of Last Submission: | 24 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 24 May 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Donovan Oates Hannaford |
| For the Respondent: | In person by telephone |
ORDERS
A sequestration order be made against the estate of James Ernest Carlson.
The Applicant Creditor’s costs (including any reserved costs) be taxed (in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006) and paid from the estate of the Respondent Debtor in accordance with the Act.
Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within two days.
THE COURT NOTES:
That the date of the act of bankruptcy is 10 January 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 68 of 2011
| ASHLEY JAMES CORBETT |
Applicant
And
| JAMES ERNEST CARLSON |
Respondent
REASONS FOR JUDGMENT
There comes before me today an application for a sequestration order against James Ernest Carlson. Mr Carlson is currently in Hong Kong and the hearing of the matter was conducted by telephone. When the matter was last before the Registrar certain orders were made for Mr Carlson to file a notice of opposition and evidence in support. He did so although it was argued by Mr Merewether, who appears for the applicant, that those documents were not served. He has, however, seen a copy of them and was prepared to deal with them.
Mr Carlson’s opposition relates to the judgment upon which both the bankruptcy notice and the petition are founded. According to Mr Carlson the debt which is alleged against him arises out of a real estate transaction or transactions, which he says, he did not enter into. He says that he has asked the applicant creditor to provide him with details of the contracts for purchase of land upon which he believes the judgment was founded.
The difficulty I have with Mr Carlson’s arguments are that the only evidence I have before me is of a judgment of the District Court of New South Wales dated 9 October 2007 certifying that the judgment creditor, Mr Corbett, obtained judgment against the defendant on 9 October 2007 in the sum of $200,226.00 together with his costs of $21,737.90. I have no evidence as to what the background to the judgment was or the manner in which it was obtained. Mr Carlson indicates that he knew nothing about it but he also accepts that he took no steps once he did find out about it to have the judgment set aside and put on a defence which would take up the matters that he has explained to me today on the telephone. It is not appropriate for this court to delve into those matters in the absence of any evidence and the court’s ability to go behind a judgment is limited to cases where there is some clear indication that all is not well with the procedures which led to the judgment itself. Mr Carlson says, in his notice of grounds of opposition, that he did not appeal the default judgment because he had insufficient funds and that he was resident in Hong Kong and that he was, therefore, in no position to act for himself. But it was he who made that decision and it must be he who bears responsibility for it. It is no answer to judgments to bury one’s head in the sand and wait for some further process to be initiated.
Mr Carlson also told me that he had a bundle of documents which indicated that the applicant had agreed not to proceed in this manner. If he does have those documents he has not shown them to the court and, therefore, there is no evidence before me today that such documents exist and Mr Merewether and his client have not had an opportunity to consider or respond to them. I cannot hold up hearing the petition for that reason given the orders made by Registrar Segal on 19 May 2011 for the respondent to file and serve his evidence in relation to the notice of opposition. In those circumstances I propose to proceed to make the sequestration order.
I am satisfied that the respondent 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 Bankruptcy Act 1966 (the “Act”). I make a sequestration order against the estate of James Ernest Carlson. I order that the Applicant Creditor’s costs (including any reserved costs) be taxed (in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006) and paid from the estate of the Respondent Debtor in accordance with the Act. Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within two days. The Court notes that the date of the act of bankruptcy is 10 January 2011.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 9 June 2011
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