Jemmeson and Fisher T/As Jemmeson and Fisher Solicitors and ACCOUNTANTS v Lambert

[2013] FCCA 1900

FEDERAL CIRCUIT COURT OF AUSTRALIA

JEMMESON & FISHER T/AS JEMMESON & FISHER SOLICITORS & ACCOUNTANTS v LAMBERT [2013] FCCA 1900

Catchwords:
BANKRUPTCY – Petition – objection on basis of cross-claim and non-service.

Legislation:  
Bankruptcy Act 1966 (Cth), s.52

Applicant: GREGORY NEIL JEMMESON & STEPHEN CRAIG FISHER T/AS JEMMESON & FISHER SOLICITORS & ACCOUNTANTS

Supporting Creditor: ACCESS LAW GROUP PTY LTD
ACN 080 980 909

Respondent: PAUL FRANCIS LAMBERT

File Number: SYG 3036 of 2012

Judgment of: Judge Raphael

Hearing date: 11 November 2013

Date of Last Submission: 11 November 2013

Delivered at: Sydney

Delivered on: 11 November 2013

REPRESENTATION

Solicitors for the Applicant: Jemmeson & Fisher

For the Respondent: In person

ORDERS

1. Notice of Opposition dismissed.

2. A Sequestration Order be made against the estate of Paul Francis Lambert.

3. The Applicant’s costs (including any reserved costs) be taxed and paid from the estate of the Respondent in accordance with the Act.

4. Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.

THE COURT NOTES THAT:

1. The date of the act of bankruptcy is 5 November 2012.

2. A consent to act as trustee has been signed by Jason Shane Cronan and Terry Grant van der Velde  and has been lodged with the Official Receiver in Sydney.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3036 of 2012

GREGORY NEIL JEMMESON & STEPHEN CRAIG FISHER T/AS JEMMESON & FISHER SOLICITORS & ACCOUNTANTS

Applicant

ACCESS LAW GROUP PTY LTD ACN 080 980 909

Supporting Creditor

And

PAUL FRANCIS LAMBERT

Respondent

REASONS FOR JUDGMENT

1. There comes before the court today an application for a sequestration order based upon a bankruptcy petition that was the subject of an order for substituted service dated 12 February 2013.  The applicant seeks an adjournment of the matter.  He resists the petition on two bases;  first, he says he has brought a case against the creditor, which is a firm of solicitors, for  professional negligence;  second, he says that he was not properly served with the bankruptcy petition. 

2. In regard to the first claim, Mr Rabadi, who appears on behalf of the creditor, has tendered an email addressed to him from [email protected], which I am prepared to accept is a part of the court registry, stating that on 8 November 2013 Judge Bozic in the Civil Registry of the District Court granted a notice of motion to the creditors dismissing the proceedings brought by the debtor pursuant to rule 13.4 of the Uniform Civil Procedure Rules and ordering the debtor to pay the creditor’s costs. 

3. There is therefore no longer such an application.  In regard to the second part of the debtor’s resistance to the petition, I have before me an affidavit of service indicating that on 5 March 2012 – presumably a mistake for 2013 – the creditor’s petition and various other documents that were required by the order for substituted service dated 12 February 2013 were served upon the respondent debtor at the address referred to in the Order.  It seems to me, therefore, that service has been properly effected.   In those circumstances there is no impediment to my hearing the petition. 

4. I am satisfied the respondent committed the act of bankruptcy alleged in the petition and I am satisfied of 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 Paul Francis Lambert.

5. I order that the applicant’s costs, including reserved costs if any, be taxed and paid from the estate of the respondent in accordance with the Act. 

6. Under the Bankruptcy Regulations a copy of the sequestration order be given to the official receiver in Sydney within two days.

7. The court notes that the date of the act of bankruptcy is 5 November 2012.  I note the consent to act as a trustee has been signed by Jason Shane Cronin and Terry Grant Van der Velde and has been lodged with the Official Receiver in Sydney. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  19 November 2013