Deputy Commissioner of Taxation v D. Wright

[2005] FMCA 763

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DEPUTY COMMISSIONER OF TAXATION v D. WRIGHT [2005] FMCA 763

BANKRUPTCY – Sequestration order

Bankruptcy Act 1966 (Cth)

Applicant: DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Respondent: DAVID EDWARD WRIGHT

File Number: MLG 1100 of 2003

Judgment of: Hartnett FM

Hearing date: 3 June 2005

Delivered at: Melbourne

Delivered on: 3 June 2005

REPRESENTATION

Counsel for the Applicant: Mr A.W. Ellis

Solicitors for the Applicant: Australian Taxation Office

The Respondent: There being no appearance by or on behalf of the respondent

ORDER

1. A sequestration order be made against the estate of David Edward Wright.

2. The Applicant’s costs of and incidental to the Petition, including reserved costs, be taxed and when taxed paid out of the estate of David Edward Wright with a priority under section 109 of the Bankruptcy Act 1966.

3. The date of the act of Bankruptcy is 23 June 2003.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 199 of 2004

DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Applicant

And

DAVID EDWARD WRIGHT

Respondent

REASONS FOR JUDGMENT

1. Proceedings commenced upon the presentation of a petition by the applicant on 6 October 2003.  Affidavits verifying paragraphs 1, 2 and 3 and an affidavit verifying paragraph 4 have been filed and were served by personal service upon the respondent at the time of service of the petition.

2. The applicant applies to the court for a sequestration order under s.43 of the Bankruptcy Act 1966 (Cth) against the estate of David Edward Wright alleging an act of bankruptcy was committed by the respondent debtor within six months before the presentation of the petition in that the respondent debtor failed on or before 23 June 2003 either to comply with the requirements of the bankruptcy notice served on him on 1 June 2003 or to satisfy the court that he had a counterclaim, set‑off or cross‑demand equal to or exceeding the sum specified in paragraph 1 of the bankruptcy notice, being a counterclaim, set-off or cross‑demand that the respondent debtor could not have set up in the action in which the judgment was obtained.

3. The bankruptcy notice was founded on a final judgment obtained in the County Court of the state of Victoria at Melbourne in the sum of $95,938.50 on 5 March 2002.  Service of the petition was effected by personal service on 20 October 2003.

4. The court has before it affidavits of search and liability, the affidavit of liability being deposed to by Mr Craig Ortland as to his search of the records indicated therein on 2 June 2005 and the affidavit of search being deposed to by Ms Yasmine Neenan as to the search conducted by her of the National Personal Insolvency Index on 2 June 2005.  The court accepts the contents of those affidavits.

5. The applicant has advised the respondent in writing of its intention to proceed with the sequestration application this day and opposition to any further adjournments sought by the respondent.  The respondent has faxed to the court a request for an adjournment, relying on a note from a general practitioner to whom it may concern attesting to the mental state of the respondent.  There is no affidavit evidence before the court, nor evidence from a suitably qualified medical practitioner as to the current state of health of the respondent.

6. Furthermore, the respondent faxed to the applicant correspondence indicating that the mortgagor has taken possession of the real property in relation to which it was anticipated an orderly sale would be conducted to enable the applicant to be paid the moneys owed to it.  The mortgagor has scheduled an auction of the real property to occur Saturday, 4 June 2005, which is tomorrow.

7. The court is satisfied that a sequestration order should be made against the estate of the respondent and a costs order made in terms as sought by the applicant.

8. I am satisfied the debtor committed the act of bankruptcy alleged in the petition and I am satisfied with the proof of the other matters of which sub-s.52(1) of the Bankruptcy Act 1966 requires proof.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:  Sophie Killen

Date:  3 June 2005