Favell v Mbuzi

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAVELL v MBUZI [2011] FMCA 710

BANKRUPTCY – Creditor’s Petition – service of Bankruptcy Notice – deemed service – delivery in ordinary course of post – no receipt because of no mailbox – cl. 24.1.3 of Australia Post Terms and Conditions – no proved non-delivery.

BANKRUPTCY – Stay of Sequestration Order – refused.

Bankruptcy Act 1966, s.52
Australian Postal Corporation Act 1989, s.32(1)(b)
Bankruptcy Regulations 1996, reg.16.01(a)
Federal Court Rules 2011

Fancourt v Mercantile Credits (1983) 154 CLR 87
Skalkos v T & S Recoveries Proprietary Limited (2004) FCAFC 321

Applicant: PAUL JOSEPH FAVELL

Respondent: JOSIYAS MBUZI

File Number: BRG 493 of 2011

Judgment of: Jarrett FM

Hearing dates: 18, 26 August 2011 and 5 September 2011

Date of Last Submission: 5 September 2011

Delivered at: Brisbane

Delivered on: 5 September 2011

REPRESENTATION

Counsel for the Applicant: Mr P. W. Hackett

Solicitors for the Respondent: In person

ORDERS

1. A sequestration order be made against the estate of JOSIYAS MBUZI.

2. The petitioning creditor’s costs be taxed and paid in accordance with the Federal Court Rules 2011 and the Bankruptcy Act 1966.

THE COURT NOTES:

1. That the date of the act of bankruptcy is 23 December 2010.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 493 of 2011

PAUL JOSEPH FAVELL

Applicant

And

JOSIYAS MBUZI

Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)

1. This is an application for the making of a sequestration order against the respondent. The proceedings have as their genesis a judgment given by the District Court of Queensland on 18 November, 2005. On that day, the District Court gave judgment in favour of the petitioning creditor against the respondent debtor for the sum of $15,000 plus interest, such interest to be calculated at 10% per annum from 14 February, 2005 to judgment.

2. On 24 November, 2010 the petitioning creditor applied to the Insolvency and Trustee Service for the issue of a bankruptcy notice against the respondent, and the bankruptcy notice was issued. 

3. There is nothing on the face of the bankruptcy notice, and nothing was put to me in the course of submissions that suggest that the bankruptcy notice is anything other than valid. It was suggested in submissions that the bankruptcy notice overstates the amount claimed by the applicant against the respondent, but in my view, the bankruptcy notice follows the judgment. It sets out quite clearly the judgment upon which it is based, and the way in which the amount claimed under the bankruptcy notice is calculated. True it is that the precise amount claimed in the bankruptcy notice is not set out in the judgment in the same amount, but that is because there is interest included in the amount claimed in the bankruptcy notice. As best as I can tell, there is nothing incorrect about those calculations as set out in the schedule of interest calculations attached to the bankruptcy notice.

4. The bankruptcy notice was purportedly sent by letter to the respondent’s address. I am…