Holt v Stowe Australia Pty Ltd

[2006] FMCA 1659

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOLT v STOWE AUSTRALIA PTY LIMITED [2006] FMCA 1659

BANKRUPTCY – Annulment of bankruptcy.

Bankruptcy Act 1966, s.153B

Applicant: GLEN DAVID HOLT

Respondent: STOWE AUSTRALIA PTY LIMITED

File number: SYG2845 of 2006

Judgment of: McInnis FM

Hearing date: 7 November 2006

Delivered at: Sydney

Delivered on: 7 November 2006

REPRESENTATION

Counsel for the Applicant: Mr D. Pritchard

Solicitors for the Applicant: Mills Oakley Lawyers

Counsel for the Respondent: Ms S. Nash

Solicitors for the Respondent: Sally Nash & Co

ORDERS

Pursuant to s.153B of the Bankruptcy Act 1966 the bankruptcy of the Applicant is annulled.    

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2845 of 2006

GLEN DAVID HOLT

Applicant

And

STOWE AUSTRALIA PTY LIMITED

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application pursuant to s.153B of the Bankruptcy Act 1966 seeking annulment of a sequestration order.  The application is not opposed by the Trustee and I am satisfied on the affidavit material before the court that it is not opposed by relevant creditors and I am further satisfied he had been properly and appropriately notified of this application. 

2. It is clear from the affidavit material, and I accept that it is appropriate in the exercise of the court’s discretion to find that the sequestration order ought not to have been made and it is appropriate in the circumstances to make the order sought.  I reach that conclusion based upon the affidavit material which satisfies me that an appropriate explanation has been given in relation to the non appearance by the applicant before the court when the sequestration order was made. 

3. I am further satisfied on the material before me without referring to the particulars that at all relevant times the applicant was solvent.  Having made those findings based as they are upon the relevant affidavit material it is my concluded view that it would be appropriate in the exercise of the court’s discretion that the order sought be made.  It is not necessary for me to recite in further detail the chronology of the events although for the sake of completeness I shall incorporate in this decision the chronology prepared by the Applicant’s representative (the chronology) and that will be set out as the background information required in this application.  I am satisfied that chronology accurately reflects and is supported by the affidavit material filed for and on behalf of the Applicant.

4. The chronology is as follows:-

“Mr Holt”               means the applicant.

“Holt 1”                  means the affidavit of Mr Holt sworn 2 October 2006.

“Holt 2”                  means the affidavit of Mr Holt sworn 31 October 2006.

“Geary 1”               means the affidavit of Luke Patrick Geary sworn 4 October 2006.

“Geary 2”means the affidavit of Luke Patrick Geary sworn 7 November 2006.

“Cruickshanks”     means the affidavit of Robert John Cruickshanks sworn 24 October 2006.

Date	Event	Para
16 May 1961	Mr Holt born.	Para 5 of Holt 1; page 48 of Holt 1.
2001	Mr Holt commences conducting his electrical contracting business in Queensland from Tweed Heads to Mackay.	Para 5 of Holt 1.
September 2004	Mr Holt last used Stowe Australia Pty Limited.	Para 7 of Holt 1.
December 2004	Mr Holt last used Australian Regional Wholesalers Pty Limited t/as Ideal Electrical Suppliers which currently employs 5 trade sub contractors to assist Mr Holt and has in excess of $3 million in current contracts.	Paras 9 and 15 of Holt 1.
21 June 2005	Date process server for judgment creditor, Stowe Australia Pty Limited, left Local Court at Penrith process with Mrs Holt.  Mrs Holt never told Mr Holt that document had been left with her and did not provide those documents to Mr Holt. Mr and Mrs Holt were undergoing significant difficulties in their marriage at this time.	Para 7 of Holt 1; page 13 of Holt 1.
Shortly after 21 June 2005	Mr Holt left the matrimonial home of Mr and Mrs Holt at Karabella Court, Mermaid Waters in the state of Queensland.	Para 7 of Holt 1.
Prior to 15 August 2005	Mr Holt’s wife, Vikki, assisted him in the conduct of his business and the administration of his finances.	Para 6 of Holt 1.
22 June 2006	Process server for Australian Regional Wholesalers Pty Limited left documents with Mrs Holt.  However, Mrs Holt did not tell Mr Holt about the service or provided the documents.  At this time, Mr Holt resided at 71 Finnegan Way, Coomera in the state of Queensland.	Para 9 of Holt 1.
2 August 2006	Australian Regional Wholesalers obtained default judgment against Mr Holt in the District Court of Queensland in sum of $80,300.  Mr Holt was unaware of the default judgment until after sequestration order made.	Para 9 of Holt 1.
4 August 2006	Sequestration order made in respect of $11,845.67 debt to Stowe Australia Pty Limited.	Para 2 of Holt 1.
21 August 2006	Trustee sends letter to Mr Holt at 2 Karabella Court address.	Page 8 of Holt; pages 7 and 47 of Holt 1.
23 August 2006	Mr Holt first learns of sequestration order having been made, that bankruptcy proceedings have been commenced against him, that a bankruptcy notice was alleged to have been served on him and that default judgment had been obtained against him.	Paras 3-4 of Holt 1.
3 September 2006	Mr Holt completes statement of affairs.	Pages 14 to 33 of Holt 1.
15 September 2006	Solicitors for Mr Holt send letter to ITSA and all creditors of Mr Holt informing them that he had recently become an undischarged bankrupt as he was required to do pursuant to section 269 of the Bankruptcy Act and informing them that they were taking steps to ensure the immediate annulment of Mr Holt’s bankruptcy.  Only 2 creditors contacted the solicitors for Mr Holt but no material dispute raised.	Para 14 and annex D of Geary 1.
26 September 2006	Judgment creditor, Stowe Australia Pty Limited, paid full amounts of its claim of $17,822.10 and consents to Mr Holt’s application for annulment of sequestration order.	Page 43 of Holt 1.
28 September 2006	Australian Regional Wholesalers Pty Limited paid full amount of debt of $81,378..	Page 44 of Holt 1.
29 September 2006	Letter from trustee advising that trustee neither contents nor opposes Mr Holt’s application for an annulment.	Page 105 of Cruickshanks.
4 October 2006	Application filed by Mr Holt for an annulment pursuant to section 153B of the Bankruptcy Act.	Court file.
19 October 2006	Solicitors for Mr Holt forward letters to each of the unsecured creditors of Mr Holt and trustee in respect of annulment application as required by Rule 7.03 of the Federal Magistrate’s Court (Bankruptcy) Rules.	Geary 2.
24 October 2006	Affidavit of Mr Cruickshanks as acting official receiver pursuant to Rule 7.04 of the Federal Magistrate’s Court (Bankruptcy) Rules.	Court file.

1. For the reasons given and noting the chronology it follows that the order of the court should be that pursuant to s.153B of the Bankruptcy Act 1966 the bankruptcy of the Applicant be annulled.

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

Associate: 

Date:  7 November 2006