In the Matter of Pietropaoli, Ricardo; The Travel Compensation Fund v Peitropaoli, Ricardo

[1997] FCA 1574

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 7364 of 1997

IN THE MATTER OF RICARDO PIETROPAOLI

THE TRAVEL COMPENSATION FUND
APPLICANT

RICARDO PIETROPAOLI
RESPONDENT

COURT:	NORTHROP J
DATE:	27 OCTOBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

This is the return of a petition for a sequestration order against the estate of the debtor.  The petition is based upon a failure to comply with a bankruptcy notice based on a judgment of the County Court of Victoria made on 24 January 1995 in the sum of $60,609.39.  On the material before the Court it is clear that the bankruptcy notice was served in conformity with the requirements of orders of a Registrar of the Court and that the date of service pursuant to the orders was 6 December 1996.  The bankruptcy notice was a 14 day notice, and the act of Bankruptcy accordingly occurred on 20 December 1996.

The petition was presented on 4 June 1997 just within the six month period required by the Bankruptcy Act, and was served in conformity with orders for substituted service made by a Registrar of the Court.  The service was deemed to have taken place on 16 July 1997.  Since then the petition has been listed before a Registrar and also before the Court, constituted by a Judge.  The matter has been adjourned on several occasions.  The basis for the adjournments apparently has been to enable the debtor to take steps to attempt to have the judgment debt set aside, but no steps have been taken by the debtor to do that.  The matters have been adjourned further to enable the debtor to give notice of opposition and grounds of opposition in conformity with the Bankruptcy Act and the Rules of Court but nothing has been done at all on that basis.

Today the debtor has appeared in person and has sought an adjournment of the hearing of the petition based essentially on two grounds;  the first ground being because of his medical condition he is not in a fit position to defend the petition, and secondly, because of possible defects in the obtaining of the judgment, which was a default judgment in the County Court, claiming he was not served with the proceedings in the County Court, and also claiming there were defects in proof, if that was necessary in the County Court, of the deed by which the Travel Compensation Fund was created. 

In the course of his submissions, the debtor also stated he is a pensioner, has no assets and no income apart from his pension.  He is undergoing medical treatment and must have further medical treatment in hospital, having had operations in the past.  One has a lot of sympathy for the debtor, but in cases of this kind before an adjournment is granted normally there must be some material before the Court as to the financial position of the debtor seeking the adjournment.  There is no such material before the Court, apart from the unsworn statement of the debtor that he has no assets.

The debtor has also claimed that he has offered to pay the debt over some long period, ending some time in the latter half of 1998, but again there is no material on affidavit to support that view.  One has a lot of sympathy from what the Court has heard from the debtor as to how it came about that the amount of the judgment debt apparently was incurred, but at this stage the Court is not prepared to exercise its discretion to go behind that judgment debt, particularly when the opportunity has been given to the debtor in the past to take steps to have that debt set aside and where nothing has been done.

Having regard to the material before the Court, the Court is satisfied that the debtor committed the act of Bankruptcy alleged in the petition on 20 December 1996 and that a sequestration order should be made.   The Court makes that order.

The Court makes a further order that the petitioning creditor’s costs, including reserved costs, be taxed and paid according to the Act.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R M Northrop

Associate:

Dated:            27 October 1997

Solicitor for the Applicant:	Debtor in person
Counsel for the Respondent:	Mr J Nolan
Solicitor for the Respondent:	Minter Ellison
Date of Hearing:	27 October 1997
Date of Judgment:	27 October 1997