Green v Solomon

[2001] FCA 698

FEDERAL COURT OF AUSTRALIA

Green v Solomon [2001] FCA 698

BRUCE NOEL GREEN and DENISE ANNE GREEN v DAVID SOLOMON

N 7994 of 2000

WILCOX J
5 JUNE 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7994 of 2000

BETWEEN:	BRUCE NOEL GREEN and DENISE ANNE GREEN APPLICANT CREDITORS
AND:	DAVID SOLOMON RESPONDENT DEBTOR
JUDGE:	WILCOX J
DATE OF ORDER:	5 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Applicant Creditor be given leave to amend the Creditor’s Petition by deleting the words “6^th day of November 2000” in paragraph 4 thereof and inserting the words “5^th day of December 2000” in lieu thereof.

2.The need for service of the amended Creditor’s Petition upon the Respondent Debtor be dispensed with.

3.A Sequestration Order be made against the estate of DAVID SOLOMON.

4.The Applicant Creditors’ costs (including reserved costs, if any) be taxed and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.

The Court notes that the date of the act of bankruptcy is 5 DECEMBER 2000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7994 of 2000

BETWEEN:	BRUCE NOEL GREEN AND DENISE ANNE GREEN APPLICANT CREDITORS
AND:	DAVID SOLOMON RESPONDENT DEBTOR

JUDGE:	WILCOX J
DATE:	5 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. Application has been made by the petitioning creditors for leave to amend paragraph 4 of the bankruptcy petition. 

2. The bankruptcy petition is dated 13 December 2000.  It was filed on the following day, 14 December.  Paragraph 4 alleged the debtor committed an act of bankruptcy within 6 months before the presentation of petition, namely:

   “That the respondent debtor failed on or before the day 6 November 2000 either to comply with the requirements of the bankruptcy notice served on him on 16 October 2000 or to satisfy the Court that he had a counterclaim set off or cross-demand equal to or exceeding the sum specified in paragraph 1 of the bankruptcy notice.”

3. It appears that a bankruptcy notice was, indeed, served on the debtor on 16 October 2000 and it required compliance with 21 days from that date.  That 21 day period would have expired on 6 November 2000.  However, before 6 November - namely, on 3 November - the debtor applied to the Court for an order setting aside the bankruptcy notice.  As the period fixed by the bankruptcy notice would have expired before the application to set aside the bankruptcy notice could be dealt with by the Court, Deputy District Registrar Tesoriero made an order on 3 November extending time for compliance with the requirements of the bankruptcy notice until 28 November 2000. 

4. The matter came before Deputy District Registrar Quinn on 28 November.  She adjourned the hearing of the application to set aside the bankruptcy notice for one week, until 5 December 2000, and extended time for compliance until that date. 

5. On 5 December 2000 Deputy District Registrar Quinn dealt with the application to set aside the bankruptcy notice.  She dismissed that application.  Accordingly, time for compliance with the bankruptcy notice expired on 5 December 2000.  This is the date that ought to have been inserted in the bankruptcy petition.

6. The debtor, Mr Solomon, appears in person.  He opposes the grant of leave to amend and says that, if there was a mistake, it should not be allowed to be rectified. 

7. I think there was a mistake, in the date inserted in the petition.  However, I cannot see any basis for a finding that prejudice was occasioned to Mr Solomon by that fact.  Mr Solomon was involved in the proceedings before the Registrar.  He was aware of the position and of the extensions of time that were granted.  The question, in dealing with prejudice, is whether Mr Solomon is now any worse off than if the correct date had been inserted in the petition in the first place.  I cannot see any basis for concluding he is in any way disadvantaged by the error.  Accordingly, this seems to me a proper case in which to grant leave to amend the petition.

8. The necessary evidence has been put before the court, in relation to the other matters requiring satisfaction before a sequestration order is made. I grant leave to the petitioning creditors to amend the petition so as to substitute the date “5 December 2000” for the date “6 November 2000” in paragraph 4 of the petition. I make an order dispensing with service of the amended petition. I find the debtor committed the following act of bankruptcy: failure to comply, on or before 5 December 2000, with the requirements of a bankruptcy notice served on him on 16 October 2000. I am satisfied of the other matters required by s 52 of the Bankruptcy Act 1966 to be established before a sequestration order is made. I make a sequestration order against the estate of David Solomon. I order that the petitioning creditors’ costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox .

Associate:

Dated:             8 June 2001

Counsel for the Applicant Creditors:	G Nell
Solicitor for the Applicant:	Ian B Mitchell
Respondent Debtor appeared in person
Date of Hearing:	5 June 2001