FEDERAL CIRCUIT COURT OF AUSTRALIA
| FIACON PROPERTY SERVICES PTY LTD v ASHOURIAN | [2019] FCCA 3672 |
| Catchwords: BANKRUPTCY – Application for sequestration order – whether preconditions for making sequestration order based on failure to comply with requirements of a bankruptcy notice satisfied – whether there are substantial reasons for questioning whether behind the judgment on the basis of which the bankruptcy notice was issued there is in truth and reality a debt owed to the petitioning creditor – substantial reasons for questioning debt established – whether petitioning creditor discharged burden of proving existence of debt – burden not discharged – creditor’s petition dismissed. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.52(1), 52(2) Federal Circuit Court (Bankruptcy) Rules 2016 (Cth), rr.4.04(1)(a), 4.04(1)(b) |
| Cases cited: Cheung v Burness (Trustee) [2016] FCA 1381 |
| Applicant: | FIACON PROPERTY SERVICES PTY LTD |
| Respondent: | RAMIL ASHOURIAN |
| File Number: | SYG 2455 of 2018 |
| Judgment of: | Judge Manousaridis |
| Hearing dates: | 24 May 2019, 2 August 2019 |
| Date of Last Submission: | 2 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Katsinas on 24 May 2019 Ms P Clingan on 2 August 2019 |
| Solicitors for the Applicant: | Simone Legal |
| Counsel for the Respondent: | Mr D C Eardley on 24 May 2019 |
| Solicitors for the Respondent: | Mr R Raupach of Russo & Partners on 2 August 2019 |
ORDERS
The creditor’s petition is dismissed.
The respondent pay the applicant’s costs as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2455 of 2018
| FIACON PROPERTY SERVICES PTY LTD |
Applicant
And
| RAMIL ASHOURIAN |
Respondent
REASONS FOR JUDGMENT
Before me is an application for a sequestration order against the estate of the respondent, Mr Ramil Ashourian. The act of bankruptcy on which the applicant, Fiacon Property Services Pty Ltd (Fiacon), relies is Mr Ashourian’s failure to comply with the requirements of a bankruptcy notice issued on 5 July 2018. The bankruptcy notice is based on a default judgment for $21,691.52 Fiacon recovered against Mr Ashourian in the Local Court of New South Wales on 22 January 2018 (Judgment) and interest of $726.52 on that amount.
Although raised as a ground of opposition to the making of a sequestration order, Mr Ashourian does not dispute, and I find, that the bankruptcy notice was served on him by email on 16 July 2018,[1] and that Mr Ashourian failed to comply with the requirements of the bankruptcy notice because he failed to pay on or before 7 August 2018 any part of the amount demanded by the bankruptcy notice. There is also no dispute, and I find, that Fiacon filed the creditor’s petition on 31 August 2018 and, on that day, it filed an affidavit required by r.4.04(1)(a) of the Federal Circuit Court (Bankruptcy)…
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- Case
- [2019] FCCA 3672
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the preconditions for making a sequestration order, specifically the debtor's failure to comply with the bankruptcy notice, were satisfied. This required the Court to determine if there were substantial reasons for questioning whether a debt was genuinely owed to the petitioning creditor behind the judgment upon which the bankruptcy notice was founded.
Judge Manousaridis found that the debtor had raised substantial reasons for questioning the existence of the debt. The Court concluded that the creditor had not discharged its burden of proving the existence of the debt owed to it. Consequently, the creditor's petition for a sequestration order was dismissed.
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