Dexta Corporation v HANNA

[2005] FMCA 1129

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DEXTA CORPORATION v HANNA [2005] FMCA 1129

BANKRUPTCY – Review of order of Registrar – where Petition not served – where application the result of mistaken instructions.

Applicant: DEXTA CORPORATION LIMITED
ABN 12 084 487 712

Respondent: BRIAN HANNA

File Number: SYG1185 of 2005

Judgment of: Raphael FM

Hearing date: 2  August 2005

Date of Last Submission: 2 August 2005

Delivered at: Sydney

Delivered on: 2 August 2005

REPRESENTATION

Solicitors for the Applicant: G B Fernie & Co

ORDERS

1. The order of Registrar Kavallaris dated 21 July 2005 be set aside.

2. A copy of this order be provided to the Official Receiver in Sydney within two days.

3. The petition is adjourned for further mention before the Registrar on 30 August 2005.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1185 of 2005

DEXTA CORPORATION LIMITED
ABN 12 084 487 712

Applicant

And

BRIAN HANNA

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of an order of Registrar Kavallaris made on 21 July 2005 dismissing the petition against the respondent debtor.  I have been provided with a copy of an affidavit of paralegal, Annie Keverian, employed by Graeme Fernie Solicitor, who appeared before Registrar Kavallaris as agent for Moloney, Lawyers.

2. It seems that the instructions she may have had concerning the petition were changed by her principals after she had left the office for the court and instead of seeking or permitting the dismissal of the petition, she should have asked the Registrar to make no order on the petition, or more probably, to have adjourned the petition so that the debtor could be served.

3. As the debtor has not been served I am amenable to granting the application for review and the orders which I make are:

   (i)The order of Registrar Kavallaris dated 21 July 2005 be set aside.

   (ii)A copy of this order be provided to the Official Receiver in Sydney within two days.

   (iii)The petition is adjourned for further mention before the Registrar on 30 August 2005.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: