Housing Guarantee Fund Ltd; v Toumazou (No.2)
[2006] FMCA 184
•31 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOUSING GUARANTEE FUND LTD v TOUMAZOU (No.2) | [2006] FMCA 184 |
| PRACTICE AND PROCEDURE – Bankruptcy – Sequestration Order – whether court has power to grant stay pending appeal. |
| Bankruptcy Act 1966, s.52 Federal Court of Australia Act 1976, s.29 |
Housing Guarantee Fund Ltd v Toumazou [2006] FMCA 73
| Applicant: | HOUSING GUARANTEE FUND LTD |
| Respondent: | KYRIACOS TOUMAZOU |
| File Number: | MLG 167 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 31 January 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 31 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. M. Black |
| Solicitors for the Applicant: | Michael Sandor & Associates |
| Counsel for the Respondent: | Mr. P. Franzese |
| Solicitors for the Respondent: | Franzese & Associates |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 167 of 2005
| HOUSING GUARANTEE FUND LTD |
Applicant
And
| KYRIACOS TOUMAZOU |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
I shall grant leave to the Applicant to file in Court the affidavit of debt of Mr. Anthony Mackwell sworn 3 October 2005, and also the Trustee's consent to act. Based on the affidavit and the other material which was available at the hearing (see Housing Guarantee Fund Ltd v Toumazou [2006] FMCA 73). I am satisfied that the requirements of s.52 of the Bankruptcy Act 1966 (“the Act”) have been complied with and it is appropriate to make a sequestration order in the usual terms.
Upon delivering my judgment in this matter, the Respondent Debtor sought an order that the sequestration order which the Court had announced be stayed pending the outcome of a proposed appeal and/or having regard to what he claims from the bar table to be a complaint lodged with the police against the Applicant Creditor. The issue of a stay of a sequestration order pending an appeal is a matter for the Federal Court of Australia. (see s.29 of the Federal Court of Australia Act 1976).
This Court does not, in my view, have power to grant a stay pending an appeal. In the circumstances of this case there is no reason why the order I have announced, based upon the reasons that I have published, should not take effect and be entered this day. I do not accept that the other reason advanced by the Respondent Debtor, who now appears unrepresented, provides any sufficient basis for the Court to make any alteration to the orders that are proposed to be made. Those orders are now made, as indicated.
I certify that the preceding Three (3) paragraphs are a true copy of the reasons for judgment of McInnis FM
Deputy Associate: Brooke Evans
Date: 31 January 2006
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