ING Bank (Australia) Ltd v Dwight
[2012] FMCA 399
•30 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ING BANK (AUSTRALIA) LTD v DWIGHT | [2012] FMCA 399 |
| BANKRUPTCY – Creditor’s petition – notice of opposition – whether to grant sequestration order. |
| Bankruptcy Act 1966 (Cth) s.52 |
| Applicant: | ING BANK (AUSTRALIA) LTD |
| Respondent: | DEAN DWIGHT |
| File Number: | SYG 486 of 2012 |
| Judgment of: | Raphael FM |
| Hearing date: | 30 April 2012 |
| Date of Last Submission: | 30 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Gadens Lawyers |
| For the Respondent: | In person |
ORDERS
Notice of opposition dismissed.
A Sequestration Order be made against the estate of Dean Dwight.
The Applicant Creditor’s costs be fixed in the amount of $6,235.50 and paid from the estate of the Respondent in accordance with the Act.
Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.
THE COURT NOTES
(i)That the date of the act of bankruptcy is 13 February 2012.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 486 of 2012
| ING BANK (AUSTRALIA) LTD |
Applicant
And
| DEAN DWIGHT |
Respondent
REASONS FOR JUDGMENT
This is the hearing of a bankruptcy petition, presented on 5 March 2012 by ING Bank (Australia) Ltd, to whom the respondent debtor is indebted in the sum of $45,745.51. I understand from Mr Dwight that this money represents the balance after the sale of a property which he and his wife purchased in South Tacoma on the Central Coast with the assistance of a mortgage from the applicant bank. They purchased the property approximately eight years ago, at a time when the respondent and his wife were both in employment.
Mrs Dwight was made redundant in October 2007 and thereafter repayment of the mortgage became a difficulty. Eventually the property was sold by the mortgagee. There was a balance outstanding. The bank issued a bankruptcy notice against the respondent which was unpaid, hence the petition.
Mr Dwight has filed a notice of opposition and an affidavit in support. Essentially these documents go to the situation in which Mr Dwight now finds himself. He is clearly insolvent as he is unable to pay the balance of the loan for which judgment was obtained against him. He argues that making him bankrupt will be of no assistance. But this is not a ground upon which a sequestration order can be refused. Mr Dwight makes certain comments concerning the sale of the property but no evidence in relation to that has been received by the Court. This was something that should have been aired in the Supreme Court proceedings.
There is one matter about which I have some concern. Mr Dwight is currently employed by IBM Australia as an IT specialist. He is earning $85,000 a year. This is not an inconsiderable amount. It enables him to rent a property in which he and his wife can live. It may even allow for some contribution in his bankruptcy administration. But Mr Dwight tells me there is a policy at IBM that persons who have been made bankrupt may not be able to continue in that company’s employment. Whilst it is not for this court to interfere with the employment policies of a multi-national, or indeed any, company, it can express the hope that this policy will not be applied in the event that the company can satisfy itself that Mr Dwight’s bankruptcy will not impinge in any way upon its activities. I would have to say, although without any real knowledge of the facts, that I do not see how a bankruptcy would impinge upon Mr Dwight’s ability to carry out IT servicing or how the fact of his bankruptcy would be of any concern to any of the customers of IBM whose service he will be repairing.
I must therefore dismiss the notice of opposition and, having been satisfied that the respondent has committed the act of bankruptcy alleged in the petition and upon being satisfied with the proof of the other matters required by s.52 of the Bankruptcy Act 1966 (Cth), I make a sequestration order against the estate of Dean Dwight. I order that the applicant’s costs be fixed in the amount of $6,235.50 and paid from the estate of the respondent in accordance with the Act. Under the Bankruptcy Regulations, a copy of this sequestration order shall be given to the Official Receiver in Sydney within two days.
The court notes that the date of act of bankruptcy is 13 February 2012.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 23 May 2012
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