Fleet v RSPCA
[2008] FMCA 1631
•2 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FLEET v RSPCA | [2008] FMCA 1631 |
| BANKRUPTCY – Application for review of decision made by Registrar in 2005 – no compliance with orders – no appearance by applicant. |
| Federal Magistrates Court (Bankruptcy) Rules 2006 Federal Magistrates Court Rules 2001 Bankruptcy Act 1966, s.109(1)(a) |
| Applicant: | ROBERT FLEET |
| Respondent: | ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS |
| File Number: | SYG 330 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 2 December 2008 |
| Date of Last Submission: | 2 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 December 2008 |
REPRESENTATION
| For the Applicant: | No appearance |
| Solicitors for the Respondent: | Sally Nash & Co |
ORDERS
Application for review dismissed.
The costs of the Respondent be paid as part of the costs of the Sequestration Order under s.109(1)(a) Bankruptcy Act.
That the remuneration, costs and expenses of the Trustee in Bankruptcy for the application be paid out of the estate of the Applicant, Robert Fleet.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 330 of 2005
| ROBERT FLEET |
Applicant
And
| ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant sought review of a decision of the Registrar to make a sequestration order against him on 29 June 2005. The original application was filed on 12 September 2008. The matter came before me for directions on 23 September 2008 when I made orders, including orders that the applicant comply with the provisions of r.7.06 of the Federal Magistrates Court (Bankruptcy) Rules 2006, and file an affidavit evidencing same on or before 24 October 2008. I also ordered the applicant to file and serve any further evidence upon which he intended to rely on or before 24 October 2008. These orders do not appear to have been complied with and I have to confess to being at somewhat of a loss to understand exactly why the applicant claims that the sequestration order should not have been made. In any event, without some detailed explanation for the delay, I would have been reluctant to consider extending the time in respect of which a review may be made from the period mandated by Rule 20.01 of the Federal Magistrates Court Rules 2001 of 21 days.
This morning the matter was due to be heard at 10.15a.m. That date and time were contained in the orders made on 23 September 2008 at a directions hearing Mr Fleet attended. I am informed by Ms Nash, who appears on behalf of the trustee and for the respondent, that she has not heard from Mr Fleet in relation to this matter. Mr Fleet was not in attendance at court at 10.15a.m., was not in attendance when the case was called outside the court at 10.35a.m. and is not in attendance whilst I am providing these reasons for my decision. I believe in the circumstances that it is appropriate that the application for review be dismissed. I also think that it is appropriate that the costs of the respondent be paid as part of the costs of the sequestration order under s.109(1)(a) of the Bankruptcy Act 1966 (the “Act”), and that the remuneration costs and expenses of the trustee in bankruptcy for the application be paid out of the estate of the applicant. I note that in this regard I ordered the trustee to prepare a report, which he has done. The report makes it clear that Mr Fleet was insolvent at the time of the sequestration order and is still insolvent. There would have been very little prospect of my exercising any discretion to grant a review in these circumstances. No application for annulment has been made.
I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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