Davison v Pachos
[2010] FMCA 738
•21 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DAVISON v PACHOS | [2010] FMCA 738 |
| BANKRUPTCY – Refusal of adjournment of petition – sequestration order made. |
| Bankruptcy Act1966, s.52 |
| Applicant: | CHARLES DAVISON |
| Respondent: | JOHN PACHOS |
| File Number: | SYG 1309 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 21 September 2010 |
| Date of Last Submission: | 21 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Houston Dearn O’Connor |
| Counsel for the Respondent: | Ms J Keys |
ORDERS
A sequestration order be made against the estate of John Pachos.
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 2 days.
THE COURT NOTES:
That the date of the act of bankruptcy is 12 May 2010.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1309 of 2010
| CHARLES DAVISON |
Applicant
And
| JOHN PACHOS |
Respondent
REASONS FOR JUDGMENT
This matter came before me on 31 August 2010 when two grounds of opposition had been filed to an application for a sequestration order. I dealt with both of those grounds of opposition and dismissed them; Davison v Pachos [2010] FMCA 683. However, in order to provide the respondent with some assistance, I adjourned the matter into the Registrar’s list on 7 September 2010. Apparently thereafter, an application was made to the Supreme Court to try and amend the judgment upon which the debt was based.
But the judgment was one by consent for costs and so the application clearly had very little chance of success. I am told by Ms Keys, who appears for the respondent debtor, that the application was heard by Garling J on Friday and he dismissed it. There is now an application to further adjourn the hearing of the petition. Ms Keys says she wants time to file a notice of objection. She already has filed a notice of objection; it was dealt with and dismissed.
She says that she wants to claim that her client is solvent. But she has provided me with no affidavit evidence to that effect. He has failed to comply with the terms of a bankruptcy notice, and that is indicative of an act of bankruptcy. The matter has been in this Court since June and relates to a debt that has been owing since 2009.
Whilst it would appear that the circumstances under which Mr Pachos became liable to Mr Davison are unfortunate in that he believed that someone else was paying for his opportunity to drive in a saloon car race, the fact is that it has now been clearly established that he was the person responsible, and the amount of money owed is not just the $11,000.00 for which this judgment has been obtained, but other sums, none of which have been paid. In those circumstances, I am not prepared to grant any further adjournment of the matter, and will now proceed to hear the petition.
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 as required by s.52 of the Bankruptcy Act1966 (the “Act”). I make a sequestration order against the estate of John Pachos. I order that the applicant’s costs, including reserve costs, if any, be taxed and paid from the estate of the respondent, 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 the date of the act of bankruptcy as 12 May 2010.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 27 September 2010
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