Gregg v Lowndes
[2006] FMCA 1957
•22 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GREGG v LOWNDES | [2006] FMCA 1957 |
| BANKRUPTCY – Sequestration order – refusal of adjournment. |
| Bankruptcy Act, ss.52 |
| Applicant: | JOHN STANLEY GREGG T/AS GREGG LAWYERS |
| Respondent: | ALAN DAVID LOWNDES |
| File number: | BRG 744 of 2006 |
| Judgment of: | Wilson FM |
| Hearing date: | 22 December 2006 |
| Date of last submission: | 22 December 2006 |
| Delivered at: | Brisbane |
| Delivered on: | 22 December 2006 |
REPRESENTATION
| The Applicant: | In Person |
| The Respondent: | No Appearance |
ORDERS:
That a Sequestration Order be made against the estate of ALAN DAVID LOWNDES.
That the Applicant Creditor’s costs (including reserved costs, if any) be taxed and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 744 of 2006
| JOHN STANLEY GREGG T/A GREGG LAWYERS |
Applicant
And
| ALAN DAVID LOWNDES |
Respondent
REASONS FOR JUDGMENT
On 29 November 2006 Registrar Ramsey referred this matter to this court for hearing as a contested creditor's petition. The respondent was ordered to file and serve any affidavits upon which he intended to rely by 12 December 2006.
The respondent filed an affidavit on that day, in which he insisted on an adjournment for a minimum period of six weeks to allow him to put material before the court and pursue a complaint that he had made to the Legal Services Commission on 6 July 2006. He refers to a chronology which was to be included separately. It was not. The respondent asserts that he had not been served with either of the bankruptcy notice or creditor's petition. Affidavit material has been filed on behalf of the applicant deposing to that fact. The respondent’s affidavit otherwise is argumentative and lacks any ground sufficient to persuade the court to grant the adjournment sought.
At paragraph 6 of his affidavit the respondent deposes to the fact that:
An appeal is now currently under way at District Court level to overturn the above.
On 21 December 2006 the respondent sent what is described as an "important statement of facts" by facsimile transmission to the court. He stated that he will, "definitely not be present for any hearing tomorrow". He says that he is in the process of filing an appeal in the District Court. This contradicts his earlier affidavit.
It is not at all clear from the terms of the letter what grounds there are for an appeal or indeed what orders the appeal is against. The respondent has asked to be advised of the outcome, and he will be.
The applicant recovered judgment against the respondent. An application to set aside that judgment was heard on 1 December 2006 and was dismissed. The application to set aside the judgment was contested and the Magistrate found that the respondent had no defence on the merits.
The respondent has not put on any evidence in this court to dispute the debt, nor to allege that he is solvent, nor to otherwise attempt to persuade the court in terms of section 52(2)(b) of the Bankruptcy Act.
In those circumstances, being satisfied of the matters in section 52(1) of the Act, I make a sequestration order against the estate of Alan David Lowndes, and I order the respondent to pay the applicant's costs of and incidental to the application, including reserved costs if any.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 23 March 2007
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