Deputy Commissioner of Taxation v Luu
[2008] FMCA 1259
•25 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DEPUTY COMMISSIONER OF TAXATION v LUU | [2008] FMCA 1259 |
| BANKRUPTCY – Sequestration order – application for adjournment. |
| Applicant: | DEPUTY COMMISSIONER OF TAXATION |
| Respondent: | CHAY LUU |
| File Number: | BRG 304 of 2008 |
| Judgment of: | Wilson FM |
| Hearing date: | 25 July 2008 |
| Date of Last Submission: | 25 July 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 25 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | Mr Cleary |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | Mr Nguyen |
ORDERS
A Sequestration Order be made against the estate of CHAY LUU.
The Applicant Creditor’s costs in the sum of nine hundred and fifty two dollars ($952) be paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.
John Richard Park and John Gervase Shanahan be appointed as trustees of the Respondent’s Estate
The Court notes that the date of the act of bankruptcy is 29 January 2008.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 304 of 2008
| DEPUTY COMMISSIONER OF TAXATION |
Applicant
And
| CHAY LUU |
Respondent
REASONS FOR JUDGMENT
This matter was last before the Court on 11 July 2008. At that time the respondent sought an adjournment of the hearing of the creditor's petition so that he could make arrangements for the payment of the debt claimed by the applicant creditor.
On that date the respondent was represented by a Vietnamese interpreter who was sworn in and explained the submissions made on behalf of the Commissioner and the orders made by the Court.
The adjournment sought on that date was granted until today. It was granted on terms that the respondent pay the applicant's costs thrown away by reason of the adjournment and, more importantly, that the respondent file a notice of opposition and any affidavit evidence to be relied upon him by 22 July 2008.
It was explained to the respondent that no further indulgence could be expected if no material was filed. No material has in fact been filed by the respondent. Mr Nguyen, who appears on behalf of the respondent today on a pro bono basis, frankly stated to the Court that he was only retained yesterday evening. Understandably he has not had the opportunity to prepare and file any material on the respondent's behalf. A further adjournment is sought for a further period of two weeks.
The respondent has since 11 July paid a further sum of $8000 to the Commissioner, but a debt remains outstanding of $38,026.50. There is no evidence presently before the Court that demonstrates either that the respondent has the capacity to pay that sum or enter into an arrangement satisfactory to the applicant to that end or that a sequestration order should not otherwise be made on the grounds that the respondent is solvent.
The respondent was given the opportunity to put on evidence which could have stated a repayment proposal. He has chosen to do nothing until the last minute. No good reason has been shown why the matter should be further adjourned. I refuse the application for an adjournment. The applicant's material is otherwise in order.
The one matter that needed to be attended to was attended to on 11 July 2008 by amending the date in para.4 of the petition.
I note that the date of the act of bankruptcy is 29 January 2008.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 4 September 2008
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