Deputy Commissioner of Taxation v Simandl
[2009] FCA 570
•26 May 2009
FEDERAL COURT OF AUSTRALIA
Deputy Commissioner of Taxation v Simandl [2009] FCA 570
BANKRUPTCY – applications for sequestration orders
Held: sequestration orders made
Bankruptcy Act 1966 (Cth), ss 40(1)(g), 43(1), 52
Judiciary Act 1903 (Cth), s 78BFederal Court (Bankruptcy) Rules2005 (Cth), r 4.06
DEPUTY COMMISSIONER OF TAXATION v ZDENEK SIMANDL
NSD 217 of 2009
DEPUTY COMMISSIONER OF TAXATION v HEATHER JANE SIMANDL
NSD 218 of 2009JAGOT J
26 MAY 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 217 of 2009
BETWEEN: DEPUTY COMMISSIONER OF TAXATION
Applicant
AND: ZDENEK SIMANDL
Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
26 MAY 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.A sequestration order be made against the estate of Zdenek Simandl.
2.The applicant creditor’s costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
THE COURT NOTES THAT:
The date of the act of bankruptcy is 5 May 2008.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 218 of 2009
BETWEEN: DEPUTY COMMISSIONER OF TAXATION
ApplicantAND: HEATHER JANE SIMANDL
Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
26 MAY 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.A sequestration order be made against the estate of Heather Jane Simandl.
2.The applicant’s creditor’s costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
THE COURT NOTES THAT:
The date of the bankruptcy is 5 May 2008.Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 217 OF 2009
BETWEEN: DEPUTY COMMISSIONER OF TAXATION
Applicant
AND: ZDENEK SIMANDL
Respondent
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 218 OF 2009
BETWEEN: DEPUTY COMMISSIONER OF TAXATION
Applicant
AND: HEATHER JANE SIMANDL
Respondent
JUDGE:
JAGOT J
DATE:
26 MAY 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
These are two applications for sequestration orders as contemplated by s 43(1) of the Bankruptcy Act 1966 (Cth).
When the matter was called this morning neither respondent appeared. I have before me in evidence letters from the Registry of the Federal Court to each of the respondents notifying them that the matters had been listed for hearing at 10.15 am today. Further, it is clear from the Court’s file that the respondents were aware of the proceedings against them, as various documents have been filed presumably in anticipation of a hearing. The applicant requested that the matters proceed in the absence of the respondents, given the circumstances to which I have referred. In my view, it was appropriate to proceed in the absence of the respondents and the hearing therefore has taken place today on that basis.
The applicant has filed helpful written submissions which summarise the applicant’s basic position. In short, in each of the proceedings NSD 217 of 2009 (Deputy Commissioner of Taxation v Zdenek Simandl) and NSD 218 of 2009 (Deputy Commissioner of Taxation v Heather Jane Simandl) the applicant moves on a creditor’s petition dated 14 August 2008.
In each proceeding, the applicant, the petitioner, applies for a sequestration order pursuant to s 43(1) of the Bankruptcy Act.
In each proceeding, the acts of bankruptcy upon which the petitioner relies are the failure by the respondents to comply with bankruptcy notices served on them, or to satisfy the Court of the existence of any relevant counter claim, set-off or cross demand. As the applicant’s submissions note, such a failure is an act of bankruptcy under s 40(1)(g) of the Bankruptcy Act.
The bankruptcy notice to the respondent in proceeding NSD 217 of 2009 (Mr Zdenek Simandl) was issued on 9 January 2007, whereas the bankruptcy notice addressed to the respondent in proceeding NSD 218 of 2009 (Ms Heather Jane Simandl) was issued on 20 February 2007.
The applicant has read a number of affidavits and tendered documents in each proceeding addressing the matters required by r 4.06 of the Federal Court (Bankruptcy Rules) 2005 (Cth) and s 52 of the Bankruptcy Act.
In proceeding NSD 217 of 2009, the affidavits of Matthew Ellsmore and Colin Stapley, sworn 12 December 2008 and 10 February 2009 respectively, establish service of the creditor’s petition and other documents in accordance with an order of the Court of 19 November 2008 for substituted service. Further, the affidavit of Emma Whan sworn 25 May 2009 deposes to her search of the National Personal Insolvency Index. Finally, the affidavit of Joanne Clarke sworn 25 May 2009 deposes to the fact that each debt on which the applicant relies is still owed. These affidavits in proceeding 217 of 2009 satisfy the requirements of r 4.06 of the Federal Court (Bankruptcy) Rules and s 52 of the Bankruptcy Act.
Consistent with the submissions of the applicant, it is immaterial that the affidavit verifying the creditor’s petition which is annexed to the affidavit of Matthew Ellsmore refers to the respondent having failed within 21 days after service of the bankruptcy notice to pay the debt or make an arrangement to the applicant’s satisfaction for payment of the debt, in circumstances where, in fact, by reason of orders made by Cowdroy J on 12 May 2009, the time for compliance with the bankruptcy notice was extended up to and including 5 May 2008. The reason that this is immaterial is, as the applicant submitted, the affidavit of Joanne Clarke in paragraph 5 deposes to the fact that the respondent failed to pay the debt claimed in the bankruptcy notice or to make an arrangement to the applicant’s satisfaction for payment of the debt on or before 5 May 2008, being the time to which compliance with the said bankruptcy notice had been extended.
I should also note in relation to proceeding NSD 217 of 2009 that the applicant filed notice of a constitutional matter, in accordance with s 78B of the Judiciary Act 1903 (Cth) and read an affidavit of Vivienne Inns sworn 20 May 2009 establishing service of the notice of the constitutional matter on the relevant Attorneys General, as well as any responses received. This was done by the applicant because documents filed by the respondent in the proceeding raised various constitutional issues, including issues concerning the jurisdiction of this Court to deal with the matter.
In all of the circumstances to which I have referred, I am satisfied that in proceeding NSD 217 of 2009, r 4.06 of the Federal Court (Bankruptcy) Rules and s 52 of the Bankruptcy Act are satisfied. There is no reason that I should not make a sequestration order against the estate of the respondent in this proceeding.
A similar position arises in relation to proceeding NSD 218 of 2009. The applicant read the affidavits of Matthew Ellsmore and Colin Stapley, sworn 12 December 2008 and 10 February 2009 respectively, establishing service in accordance with the orders for substituted service made by the Court on 19 November 2008. The applicant also read an affidavit of Emma Whan, sworn 25 May 2009, deposing to her search of the National Personal Insolvency Index, as well as an affidavit of Joanne Clarke sworn 25 May 2009 deposing to the debt, on which the applicant relies, still being owed.
Consistent with the observations made above, the affidavit verifying the creditor’s petition in proceeding NSD 218 of 2009 also refers to the respondent’s failure to pay the debt or make an arrangement to the applicant’s satisfaction for payment of the debt within 21 days after service of the bankruptcy notice. In accordance with the position in proceeding of NSD 217 of 2009 identified at [9] above, that is immaterial because Ms Clarke’s affidavit in paragraph 5 deposes to that situation remaining the same as at 5 May 2008, being the time to which compliance with the bankruptcy notice had been extended by orders of Cowdroy J on 5 February 2008.
In common with the position in proceeding NSD 217 of 2009, the applicant in proceeding NSD 218 of 2009 has given notice of a constitutional matter, in light of the documents filed by the respondents in anticipation of the hearing. The applicant has read an affidavit of Vivienne Inns, sworn 20 May 2009, setting out her compliance with the requirements for service in relation to the notice.
In proceeding NSD 218 of 2009 it follows from matters to which I have referred that I am satisfied that there has been compliance with r 4.06 of the Federal Court (Bankruptcy) Rules and s 52 of the Bankruptcy Act. There is no matter arising which would indicate that it is inappropriate for me to make a sequestration order against the estate of the respondent who is the debtor in that proceeding and accordingly I so order.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 26 May 2009
Counsel for the Applicant: Mr G Kennett Solicitor for the Applicant: Australian Government Solicitor The Respondents did not appear
Date of Hearing: 26 May 2009 Date of Judgment: 26 May 2009
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