George v Hamilton-Smith (No.2)

[2006] FMCA 1018

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GEORGE v HAMILTON-SMITH (No.2) [2006] FMCA 1018

BANKRUPTCY – Application for review of sequestration order − where judgement debt subject of application for declaration in Local Court − where debtor had requested an adjournment at the hearing before the SM following withdrawal of counsel, after which the debtor’s solicitor refused to open the case on grounds he would later be called to give evidence − where debtor has appealed SM’s decision not to grant adjournment − whether judgment debt satisfied − where insufficient evidence of debtor’s solvency − whether in such circumstances court should exercise its discretion not to make a sequestration order − whether court should adjourn hearing of petition until appeal of SM’s decision decided − whether “other sufficient cause” to dismiss petition under s.52(2) Bankruptcy Act.

Bankruptcy Act 1966, s.52

Rules of Professional Conduct and Practice (Law Society of South Australia) Rule 13.4

Heidi George v Tanya Hamilton-Smith [2006] FMCA 566
Cirillo v Citicorp [2001] SASC 349
State of Queensland v JL Holding Pty Ltd (1997) 189 CLR 146

Applicant: HEIDI GEORGE

Respondent: TANYA HAMILTON-SMITH

File Number: ADG 237 of 2005

Judgment of: Raphael FM

Hearing date: 5 July 2006

Date of Last Submission: 5 July 2006

Delivered at: Sydney

Delivered on: 19 July 2006

REPRESENTATION

Counsel for the Applicant: Mr M. Livesey QC

Solicitors for the Applicant: Minter Ellison

Counsel for the Respondent: Mr R. Sallis

Solicitors for the Respondent: McNamara Business & Property Lawyers

ORDERS

1. Matter adjourned until 2:15p.m. EST on 19 July 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

ADG 237 of 2005

HEIDI GEORGE

Applicant

And

TANYA HAMILTON-SMITH

Respondent

REASONS FOR JUDGMENT

1. The proceeding to which these reasons relate is an application by Tanya Hamilton-Smith (the “Debtor”) for a review of a sequestration order made by Registrar Christie on 20 June 2006. In accordance with her usual practice the learned Registrar provided reasons for her decision which I have had the benefit of reading. This is not the first time that I have dealt with the petition seeking the bankruptcy of the debtor. On 21 April 2006 I reviewed a decision of Registrar Christie who had adjourned the hearing of the petition until 5 June 2006. In my decision: George v Hamilton-Smith [2006] FMCA 566, I adjourned the petition to 20 June 2006. In order to put the present matter in context, it is necessary to rehearse shortly the history of the dispute between the parties.

2. Judgment was obtained by the creditor against the debtor in the sum of $4079 by default in proceedings in the Adelaide Magistrates Court under Action Number 720 of 2002. The debtor maintains that some time after that judgment was entered the creditor and the debtor came to an agreement whereby the judgment was satisfied by the delivery of certain manchester items by the debtor to the creditor. This satisfaction of the judgment debt was raised by the debtor in her application to set aside the bankruptcy notice upon which…