Fishburn v Dunlop

[2009] FMCA 1331

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FISHBURN & ORS v DUNLOP [2009] FMCA 1331

BANKRUPTCY – Contested creditor’s petition – whether the Court should go behind the judgment debt and whether the debtor is insolvent considered.

Bankruptcy Act 1966 (Cth), s.52
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)

First Applicant: MICHAEL GEORGE FISHBURN

Second Applicant: JOHN JAMES WATSON

Third Applicant: CHRISTOPHER MARTIN O’BRIEN

Fourth Applicant SAMUEL BOYD COUPER

Respondent: JAMES HENRY DUNLOP

File Number: SYG 1581 of 2009

Judgment of: Driver FM

Hearing date: 10 November 2009

Delivered at: Sydney

Delivered on: 10 November 2009

REPRESENTATION

Solicitors for the Applicant: Ms V Otavski
Fishburn Watson O’Brien

The Respondent appeared in person

ORDERS

1. The petitioning creditor is relieved of any further need to comply with the formal requirements of rule 4.06 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth).

2. A sequestration order be made against the estate of James Henry Dunlop.

3. The petitioning creditor’s costs, including reserved costs if any, be fixed in the amount of $2,750.

4. The Court notes that the date of the act of bankruptcy is 11 June 2009.

5. Pursuant to s.52(3) of the Bankruptcy Act 1966 (Cth), all proceedings under the sequestration order be stayed for a period of 21 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1581 of 2009

MICHAEL GEORGE FISHBURN

Applicant

And

JAMES HENRY DUNLOP

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a creditor’s petition filed on 2 July 2009 seeking a sequestration and other orders against James Henry Dunlop.  The petition is supported by an affidavit of personal service of a bankruptcy notice, which provides the relevant act of bankruptcy.  The debt arises from a judgment of the Local Court registering a costs assessment in respect of unpaid legal costs.  I understand from hearing from the parties that those costs arose out of legal proceedings concerning the debtor’s land which he was attempting to use but which led him into dispute with his local council. 

2. Also supporting a petition is an application for substituted service, which was granted by Registrar Morgan who made orders on 5 August 2009 and the affidavits of Stephen Geoffrey Campbell made on

   
   

   28 August 2009, and Rachel Anne Metcalf made on 18 August 2009, satisfy me that the orders for substituted service were complied with.  Finally, I have an affidavit of search of 10 November 2009 by Victoria‑Jane Otavski, the solicitor for the petitioning creditor, and an affidavit of debt made on 23 October 2009 by Samuel Boyd Couper, which establishes that the amount of $42,749.85 remains unpaid. 

   
   

   I understand that an order was made for payment into court of that amount arising out of the judgment debt but that order has not been complied with.

3. The petition is opposed by Mr Dunlop on the basis that he is not insolvent, that he disputes the judgment debt and that he is attempting to obtain a development approval for his land, which would permit him to raise funds to deal with this and…