Fraser Town Hall Residences v Morello
[2010] FMCA 200
•9 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FRASER TOWN HALL RESIDENCES v MORELLO | [2010] FMCA 200 |
| BANKRUPTCY – Creditors Petition – no ground of objection. |
| Bankruptcy Act 1966, s.52 |
| Applicant: | FRASER TOWN HALL RESIDENCES PTY LTD T/AS FRASER SUITES |
| Respondent: | SALVATORE MORELLO |
| File Number: | SYG 2796 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 9 March 2010 |
| Date of Last Submission: | 9 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Leonard Legal |
| For the Respondent: | In person |
ORDERS
A sequestration order be made against the estate of Salvatore Morello.
The applicant creditor’s costs be fixed in the amount of $4,949.80 and paid from the estate of the Respondent Debtor in accordance with the Act.
Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.
THE COURT NOTES:
(i)That the date of the act of bankruptcy is 9 October 2009.
(ii)A consent to act as trustee has been signed by Andrew James Barnden and Daniel Peter Juratowitch and has been lodged with the Official Receiver in Sydney.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2796 of 2009
| FRASER TOWN HALL RESIDENCES PTY LTD T/AS FRASER SUITES ACN 119 144 571 |
Applicant
And
| SALVATORE MORELLO |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant seeks a sequestration order against Salvatore Morello, the debtor. The application for a sequestration order is based upon an act of bankruptcy, the failure to comply with a bankruptcy notice that was served upon the debtor on 18 September 2009. There was annexed to that bankruptcy notice a judgment of the Local Court of New South Wales in the sum $36,678.40 plus interest. The judgment related to a debt due by Mr Morello to the creditor for accommodation at the creditor’s hotel suites property that the debtor moved into on 26 September 2007. When he went into the premises he signed a registration form in which he agreed to be liable for all accounts that he “may now or hereafter maintain with Fraser Suite, Sydney”. Mr Morello argues that that is not an agreement. It is an argument I cannot accept. The consideration for the agreement was the provision of the rental accommodation to him and he was provided with that accommodation from that time up until 10 November 2008. I would also note that on 25 January 2008 he signed another agreement with the creditor relating to the provisions of long stay accommodation services to him.
Mr Morello has made no attempt to set aside the judgment. He has made no attempt to set aside the bankruptcy notice. He sought to argue today that the debt was not owing by him and in an affidavit dated 16 February 2010 he indicated that the services were provided to him out of gratitude by the manager of the suites, Mr Brown, because Mr Brown needed to show his superiors that he was able to attract long term residents of the quality of Mr Morello. In the light of the written documentation, and in the light of the fact that Mr Morello gave Mr Brown a cheque in the sum of $29,300 in payment of his outstanding account, I am satisfied that both Mr Morello and Fraser Suites proceeded on the basis the accommodation to be provided to Mr Morello was to be paid for. In any event, it is not for this court to hear Mr Morello’s defence to the original proceedings. That should have been done in the Local Court by Mr Morello filing a defence.
I am satisfied that there is no arguable ground of objection to the petition. I am satisfied that the respondent has committed the act of bankruptcy in the petition as amended. I allow the petition to be amended by altering the date of the act of bankruptcy in paragraph 4 to 9 October 2009. I am satisfied with the proof of the other matters required by s.52 of the Bankruptcy Act 1966 (the “Act”). I make a sequestration order against the estate of Salvatore Morello. I order the applicant creditor’s costs be fixed in the amount of $4,949.80 and be paid from the estate of the Respondent Debtor in accordance with the Act.
Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within two days. The court notes that the date of the act of bankruptcy is 9 October 2009. I note the consent to act as trustees has been signed by Andrew James Barnden and Daniel Peter Juratowitch and has been lodged with the Official Receiver in Sydney.
I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 24 March 2010
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