JML Rose Pty Ltd v Jorgensen
[2024] FCA 1421
•29 November 2024
FEDERAL COURT OF AUSTRALIA
JML Rose Pty Ltd v Jorgensen [2024] FCA 1421
File number: QUD 529 of 2024 Judgment of: LOGAN J Date of judgment: 29 November 2024 Catchwords: PRACTICE AND PROCEDURE – where the respondent debtor makes an application in relation to a registrar’s decision to issue sequestration orders – where the application seeks a stay of the sequestration orders – where the underlying judgment debt was made over two years ago – stay application dismissed
BANKRUPTCY AND INSOLVENCY – where the respondent debtor makes an application in relation to a registrar’s decision to issue sequestration orders – where the application seeks a stay of the sequestration orders – where the underlying judgment debt was made over two years ago – stay application dismissed
Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 8 Date of hearing: 29 November 2024 Solicitor for the Applicant: JML Rose Counsel for the Respondent: The respondent appeared in person Solicitor for the Supporting Creditor: Grace Lawyers Solicitor for the Interested Person: Rose Litigation Lawyers ORDERS
QUD 529 of 2024 BETWEEN: JML ROSE
Applicant
AND: LEIGH ALAN JORGENSEN
Respondent
BODY CORPORATE FOR CAIRNS CENTRAL PLAZA APARTMENTS COMMUNITY TITLES SCHEME 40022
Supporting Creditor
LEON LEE, AS TRUSTEE OF THE BANKRUPT ESTATE OF LEIGH ALAN JORGENSEN (THE BANKRUPT)
Interested Person
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
29 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application for a stay of the registrar’s order of 16 October 2024 be dismissed.
2.The hearing of the application in respect of the registrar’s order of 16 October 2024 be heard in Brisbane, and via video-link to Cairns, on 4 February 2025 at 10:15am.
3.The applicant file and serve any further affidavit to be relied upon on or before 6 December 2024.
4.The petitioning creditor, supporting creditor and trustee file and serve, save in respect of affidavits on debt and search for the petitioning creditor or an updated affidavit of debt for the supporting creditor, any affidavits to be relied upon on 20 December 2024.
5.Any affidavit in reply by the applicant debtor be filed and served on or before 17 January 2025.
6.On or before 28 January 2025:
(a)the petitioning creditor, supporting creditor and trustee file and serve an outline of submissions to be relied upon, of not more than 7 pages;
(b)any party requiring a witness to attend for cross-examination give notice to the party who has filed the affidavit of that witness.
7.Liberty to apply, including liberty to apply in respect of any order sought as a consequence of any setting aside by the Magistrates Court of Queensland of the judgment underlying the bankruptcy notice.
8.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
The respondent debtor, Mr Leigh Alan Jorgensen (Mr Jorgensen) has made an application in respect of a sequestration order made by a registrar on 16 October 2024. The application is a somewhat curious document, with all respect to Mr Jorgensen. It seeks the setting aside of the sequestration order on the basis that the order was made in his absence and a related stay pending the outcome of applications in the “Brisbane Magistrates Court and the Federal Circuit Court”.
It separately seeks a setting aside of “this bankruptcy action” on the basis of a substantial defect in the bankruptcy notice. Yet further, it seeks that the Court go behind the judgment which underlies the petitioning creditors debt and, in turn, a bankruptcy notice.
That judgment is one of the Queensland Magistrates Court in a proceeding M193/2022 made some years ago.
In the course of submissions about interlocutory directions to the end of the hearing of that application, I made the observation that the application was a “hybrid document”. There is, of course, only one set of rules of court. The rules do not differ as between litigants acting on their own behalf and those who have legal representation. As I also expressed in the course of exchanges concerning interlocutory directions, in earlier times when the Court’s file was in paper form, I doubt that this application would ever have been accepted for filing on the basis of its inconsistency in form with the rules. There really does need to be some very careful thought indeed, in my respectful view, as to how to restore scrutiny, which hitherto occurred in an analogue age in relation to filing of documents, to the digital age and the electronic court file.
However that may be, the document is on the court file and, on its face, Mr Jorgensen has sought a stay of the operation of the order of 16 October 2024. He has pointed, understandably, to the particular difficulties which bankruptcy visits upon an individual in relation to the operation of bank accounts and the like.
As against that, the petitioning creditor has highlighted exchanges which occurred at an interlocutory stage on 9 October 2024 before a registrar in relation to the creditor’s petition. What particularly takes my attention is that the Magistrates Court judgment concerned was given over two years ago. It seems to me that, whilst Mr Jorgensen has moved to set aside that judgment, that is a belated step.
On the face of things, the petition is one which exhibits a judgment and a consequential bankruptcy notice founded on that judgment, which in turn was the subject of non-compliance. The time for seeking a stay, in my view, was in respect of the hearing of the creditor’s petition rather than at this stage. I am not persuaded that there is a sufficient case made out in respect of the underlying judgment to warrant a stay of the sequestration order, pending hearing the application. I note particularly also, in considering whether to grant a stay, the existence of a supporting creditor whose submissions today made it patent that there is a disposition, if need be, to substitute in respect of the prosecution of the petition.
For these reasons, the stay is refused.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate:
Dated: 10 December 2024
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