Deputy Commissioner of Taxation v S. Wright

[2005] FMCA 762

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DEPUTY COMMISSIONER OF TAXATION v S. WRIGHT [2005] FMCA 762

BANKRUPTCY – Sequestration order

Bankruptcy Act 1966 (Cth)

Applicant: DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Respondent: SUSAN MAREE WRIGHT

File Number: MLG 199 of 2004

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: No appearance by or on behalf of the respondent

ORDERS

1. A sequestration order be made against the estate of Susan Maree 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 Susan Maree Wright with a priority under section 109 of the Bankruptcy Act 1966.

3. The date of the act of Bankruptcy is 10 November 2003.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 199 of 2004

DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Applicant

And

SUSAN MAREE WRIGHT

Respondent

REASONS FOR JUDGMENT

1. Proceedings commenced upon the filing of a creditors petition on 24 February 2004. The court is satisfied as to the affidavits verifying paragraphs 1, 2, 3 and 4 of that petition. The court is satisfied that personal service of the petition was effected upon Susan Maree Wright on the 4th day of March 2004 and at that same time the affidavits verifying paragraphs 1, 2, 3 and paragraph 4 of the petition were also served. A sequestration order is sought by the applicant under s.43 of the Bankruptcy Act 1966 (Cth) against the estate of Susan Maree Wright in that the respondent debtor failed on or before 10 November 2003 either to comply with the requirements of the bankruptcy notice served on her on 20 October 2003 or to satisfy the court that she 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 order was obtained.

2. The bankruptcy notice was founded on a final order obtained in the Magistrates Court of the state of Victoria at Dandenong in the sum of $38,112.78 on the 15th day of July 2003.  On 2 June 2005 have been filed an affidavit of search and an affidavit of liability, the affidavit of search being sworn by Ms Yasmine Neenan and the affidavit of liability by Mr Craig Ortland, the affidavit of search and liability which deposes to the search being conducted and the records indicating material as at 2 June 2005.  The court is satisfied as to the matters contained in the affidavit of search and the affidavit of liability.  There is also filed on 2 June an affidavit of service of Mr Frank Rebechi of correspondence forwarded to the respondent advising that the respondent opposes any further adjournments which the respondent may wish to seek and intended to proceed to seek a sequestration order against the respondent in the event that the debt outstanding in the proceedings was unsatisfied as at 3 June 2005, being the date of hearing.

3. The petition was presented on the 24th day of February 2004.  Its first hearing date was 1 April 2004 and the matter was adjourned from that date through a series of adjournments until this date.  The court received a facsimile from Mr Wright, acting on behalf of his wife and on his own behalf, advising the court that both Mr and Mrs Wright sought an adjournment of the respective proceedings against them this day on the basis of Mr Wright's ill health as sought to be established by a facsimile note from the Humphries Road Medical Centre allegedly signed by Dr S. Mililli.  That note was addressed to whom it may concern and certified that Mr David Wright has had a relapse of depression requiring medical treatment.  The note referred to him suffering poor concentration, insomnia and low mood and that mentally he was unfit to face a court hearing and was expected to be unfit for this until 10 to 14 days hence.  That is the only basis on which the adjournment has been sought.  As I say, there have been numerous adjournments in these proceedings and an order made on 5 November 2004 to the effect that should the respondent wish to apply for a further adjournment of the petition, then the respondent shall file an affidavit in support of such application and serve a copy of the affidavit on the applicant no later than 4 February 2005.  The court is not satisfied that the proceedings should be adjourned on this basis.  No affidavit material or evidence given to the court this day by a medical practitioner is before the court.

4. Further, Mr Wright has written on behalf of himself and his wife to the applicant, conveyed by facsimile yesterday, informing the applicant that the mortgagor has taken possession of the real property of himself and his wife and that an auction is scheduled for this weekend, being tomorrow, 4 June 2005.  Adjournments in both this application and the sequestration order application involving Mr David Edward Wright have been on the basis that there would be an orderly sale of this property out of which the applicant would receive funds.

5. The court will order that a sequestration order be made against the estate of Mr David Edward Wright and that 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 s.109 of the Bankruptcy Act 1966.

6. 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 six (6) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:  Sophie Killen

Date:  3 June 2005