Deputy Commissioner of Taxation v ALEX

[2011] FMCA 290

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DEPUTY COMMISSIONER OF TAXATION v ALEX [2011] FMCA 290

BANKRUPTCY – Creditor’s petition – no notice of objection but objection to the grant of the order – refusal of further adjournments and grant of sequestration order.

Bankruptcy Act 1966, s.52
Federal Magistrates Court (Bankruptcy) Rules 2006

McIntosh v Shashoua (1931) 46 CLR 494

Applicant: DEPUTY COMMISSIONER OF TAXATION

Respondent: GEORGE ALEX

File Number: SYG 2437 of 2009

Judgment of: Raphael FM

Hearing date: 19 April 2011

Date of Last Submission: 19 April 2011

Delivered at: Sydney

Delivered on: 19 April 2011

REPRESENTATION

Solicitors for the Applicant: Australian Taxation Office, Legal Services Branch

Solicitors for the Respondent: Robert Wehbe & Partners

ORDERS

1. A sequestration order be made against the estate of George Alex.

2. 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.

3. Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.

THE COURT NOTES:

(i)That the date of the act of bankruptcy is 20 July 2009.

(ii)A consent to act as trustee has been signed by Mark Damien Charles Roufeil and has been lodged with the Official Receiver in Sydney.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2437 of 2009

DEPUTY COMMISSIONER OF TAXATION

Applicant

And

GEORGE ALEX

Respondent

REASONS FOR JUDGMENT

1. This application for a sequestration order is made by the Deputy Commissioner of Taxation against Mr George Alex.  The Commissioner alleges that there is due to him the sum of approximately $64,100.00 being the balance of the amount claimed in the petition which was presented to this Court on 8 October 2009.  The respondent debtor seeks an adjournment of this application or its dismissal but has not filed a notice of objection.  His legal representative advises me that the ground upon which he will claim that the matter should be adjourned or dismissed is that he has put away sufficient money to pay the debt detailed in the petition, but the applicant creditor has not accepted his promise to pay.

2. One of the reasons that the applicant may not have accepted the promise to pay, which he is not obliged to do [McIntosh v Shashoua (1931) 46 CLR 494 per Gavan Duffy C.J., Starke, Dixon and McTiernan JJ.], is that the applicant believes there are further sums owing to it as a result of assessments that have been made and reviewed in the sum of approximately $1 million. Evidence concerning these matters is contained in the affidavit from Mr Kassem, the debtor’s solicitor.

3. I have come to the view that I should not grant the respondent debtor any further adjournments of this matter which has been ongoing, insofar as the petition is concerned, for approximately 18 months.  If the respondent had anything serious to say in objection, then he should have filed a notice between the time that the matter was last adjourned on 23 March 2011 and now, but he has failed to do so.

4. Having heard the evidence put forward by the applicant, 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 Act 1966 (the “Act”). I make a sequestration order against the estate of George Alex. I order that the applicant’s costs, including reserved 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 shall be given to the Official Receiver in Sydney within two days. The Court notes that the date of the act of bankruptcy is 20 July 2009. I note that a consent to act as trustee has been signed by Mark Damian Charles Roufeil 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:  28 April 2011