FWO Nominees Pty Ltd v Jackson-Grose (No. 2)

[2002] FMCA 195

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FWO NOMINEES PTY LTD v JACKSON-GROSE (No. 2) [2002] FMCA 195

BANKRUPTCY – Application for sequestration order alleged failure to serve affidavit verifying notice of petition – failure excused under s.306(1) of the Bankruptcy Act 1966 (Cth) – sequestration order made.

Bankruptcy Act 1966 (Cth) ss.52, 306

Applicant: FWO NOMINEES PTY LIMITED
(ACN 003 540 412)

Respondent: CATHERINE HELENE JACKSON-GROSE

File No: SZ 661 of 2001

Delivered on: 27 August 2002

Delivered at: Sydney

Hearing Date: 27 August 2002

Judgment of: Raphael FM

REPRESENTATION

Solicitors for the Applicant: Turner Whelan as agents for Fishburn Watson O’Brien

For the Respondent: Mr D Jackson-Grose

ORDERS

1. Application allowed.

2. Applicant creditor’s costs be taxed in accordance with the Federal Court Rules and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 661 of 2001

FWO NOMINEES PTY LIMITED (ACN 003 540 412)

Applicant

And

CATHERINE HELENE JACKSON-GROSE

Respondent

REASONS FOR JUDGMENT

1. The petitioning creditor seeks to proceed with the application for a sequestration order and has provided me with the appropriate documents which are required under section 52 of the Bankruptcy Act 1966 (Cth) and I am satisfied of the matters that I am required to be satisfied by under that section.

2. The debtor's agent alleges that an affidavit of 2 August 2002 which deposes to sending letters to the debtor advising her of an adjournment of a hearing on 6 August and which includes an affidavit verifying paragraph 4 of the Creditor's Petition was not served.  The letter referred to was sent to the debtor at two addresses and by facsimile.  Although it is correct that one address appears to be wrong, being 28/215 Maroondah Highway, Ringwood, instead of 28/515 Maroondah Highway, there is no evidence that the document was not received at the facsimile address or at the other address at Cason Street, Doncaster.

3. I am advised by the solicitor for the creditor that the adjourned hearing on 6 August 2002 was known to the debtor. At some stage during that day a solicitor apparently acted on her behalf. It is more likely than not that this document did come to the attention of the respondent debtor but even if it did not in all the circumstances I believe that this is a defect or irregularity which can be excused under Section 306(1) of the Bankruptcy Act.

4. I do not propose to hold up making the sequestration order in the face of the affidavit and without any evidence other than the assertion of Mr Jackson-Grose who is himself not the debtor.  In those circumstances and being satisfied as required under the Act I make a sequestration order against Catherine Helen Jackson-Grose and note that the date of the act of bankruptcy is 24 July 2001. 

5. I order that the costs of the petition, including any reserve costs are to be paid in the usual priority out of the estate of the bankrupt.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  27 August 2002