GIO Workers Compensation (NSW) Ltd v De Vita
[2007] FMCA 1594
•4 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GIO WORKERS COMPENSATION (NSW) LTD v DE VITA | [2007] FMCA 1594 |
| BANKRUPTCY – Annulment – application by petitioning creditor on basis debtor already bankrupt. |
| Bankruptcy Act 1966 (Cth), s.153 |
| Re Deriu (1970) 16 FLR 420 |
| Applicant: | GIO WORKERS COMPENSATION (NSW) LIMITED |
| Respondent: | RICCARDO DE VITA |
| File number: | SYG266 of 2007 |
| Judgment of: | Barnes FM |
| Hearing date: | 4 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2007 |
REPRESENTATION
| Solicitors for the Applicant: | TurksLegal and by consent for the Respondent |
| Respondent: | No appearance |
ORDERS
Pursuant to section 153B of the Bankruptcy Act 1966 the bankruptcy of the respondent that arose upon the making of a sequestration order on 26 July 2007 in proceedings SYG2695 of 2006 is annulled.
The costs of the applicant in these proceedings and proceedings SYG 2695 of 2006 are to be taxed and paid from the bankrupt estate of the respondent with the same priority as if the respondent’s bankruptcy arose in proceedings SYG 2695 of 2006.
A copy of these orders be lodged by the applicant with the official receiver within two days of today’s date.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2667 of 2007
| GIO WORKERS COMPENSATION (NSW) LIMITED |
Applicant
And
| RICCARDO DE VITA |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application filed on 30 August 2007 by GIO Workers Compensation (NSW) Limited seeking that the bankruptcy of the respondent, Riccardo De Vita, that arose upon the making of a sequestration order by a Registrar of this Court on 26 July 2007 in proceedings SYG2695 of 2006 be annulled pursuant to section 153B of the Bankruptcy Act 1966 and that the costs of the applicant in these proceedings and in the bankruptcy proceedings to which I have just referred be taxed and paid from the bankrupt estate of the respondent with the same priority as if the bankruptcy arose in those proceedings.
The annulment is sought on the basis that the sequestration order in issue ought not to have been made because the debtor was already bankrupt. I am told that the application is by consent and not opposed by the Official Receiver. In those circumstances I dispensed with the requirements of Rules 7.03 and 7.04 of the Federal Magistrates Court Bankruptcy Rules. The orders sought will not affect the status of the bankrupt.
As attested to in an affidavit of 28 August 2007 sworn by the solicitor for the applicant, in seeking the sequestration order the applicant had relied upon an affidavit of search in the National Personal Insolvency Index of Michelle Langston sworn on 25 July 2007 which did not reveal any other bankruptcy proceedings on foot involving the respondent or that he was already a bankrupt.
In fact it subsequently emerged that Mr De Vita had presented a debtor’s petition on 5 July 2007 and that the Official Trustee in Bankruptcy had become a trustee of the bankrupt estate. Hence the debtor was, at the time of the sequestration order in issue in these proceedings, already bankrupt. On that basis it is submitted, and I accept, that the sequestration ought not to have been made.
There is authority in support of the proposition that where a sequestration order has been made against a debtor and it is then, as in this case, discovered that he has already been made a bankrupt, the later sequestration order ought not to have been made. In such circumstances it is appropriate to annul the later bankruptcy (see Re Deriu (1970) 16 FLR 420) under section 153B of the Bankruptcy Act.)
The applicant also seeks that the costs of the applicant be paid out of the estate of the bankrupt. I consider that this is appropriate. I note in that respect that the proceedings in relation to the creditor’s petition were commenced before the debtor’s petition was presented.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 19 September 2007