Exelerate Funding v Puels (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EXELERATE FUNDING v PUELS (No.2) [2004] FMCA 404

BANKRUPTCY – Act of bankruptcy – whether debtor absented himself with intent to delay creditors – where debtor walked out of a meeting with creditor and became unavailable until petition issued – whether it is necessary for debtor’s whereabouts to be impossible to find – where debtor has misled creditor as to his financial position – whether provision of P O Box details and mobile phone number is sufficient to negate a claim – debtor “absented” himself.

Bankruptcy Act 1966 ss.40, 52

Russell v Bell (1842) Meeson and Welsby’s Reports
Ex Parte Meyer, In Re Stephany (1871-72) Ch Appeal Cases 188
In re Alice Alderson Ex Parte Jackson (1894) 1QB 183
In Re Walshe (1922) VLR 153
Edge Technology Pty Ltd v Wang [2000] FCA 1586

Applicant: EXELERATE FUNDING PTY LTD
(ABN 58 089 290 835)

Respondent: RUPERT EDGERTON PUELS

File No: SZ 327 of 2004

Delivered on: 25 June 2004

Delivered at: Sydney

Hearing date: 21 June 2004

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Mr S Robb QC

Solicitors for the Applicant: Deacons

Counsel for the Respondent: Mr A Martin SC

Solicitors for the Respondent: Daniels Bengtsson Pty Limited

ORDERS

1. I make a sequestration order against the estate of the debtor Rupert Edgerton Puels.

2. I appoint David John Kerr as Trustee of the Bankrupt’s estate.

3. I order that the costs of the application be paid out of the estate of the debtor and be taxed, if not agreed, pursuant to the Federal Court Act and Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 327 of 2004

EXELERATE FUNDING PTY LIMITED
(ABN 58 089 290 835)

Applicant

And

RUPERT EDGERTON PUELS

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are proceedings for a sequestration order based upon a creditor’s petition filed on 10 February 2004.  In the petition as filed the creditor claimed that the following acts of bankruptcy were committed by the debtor.

   The following act of bankruptcy was committed by the respondent debtor within 6 months before the presentation of this petition:

   (a)in Australia made a conveyance that would, if he became a bankrupt, be void against his trustee.

   Particulars

   Transfer on 7 January 2004 of a one half interest in the land described in NSW certificate of title folio identifier 3/SP8509.

   (b)with intend to defeat or delay his creditors:

   (i)he departed from his dwelling house;

   (ii)he departed from his usual place of business;

   (iii)he otherwise absents himself (within the meaning of section 40(1)(c)(iii) of the Bankruptcy Act 1966;

   (iv)he began to keep house on or about 5 February 2004;

   (c)he gave notice to the petitioning creditor on 5 February 2004 that he was has suspended or is about to suspend payment of his debts.

   At the hearing of the petition Mr Robb QC indicated that the creditor was proceeding only on the ground set out in 4(b)(iii) of the petition, namely that with intent to defeat or delay his creditors the…