John Markos & Ors T/As Hicksons v Stacy
[2012] FMCA 878
•21 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JOHN MARKOS & ORS T/AS HICKSONS v STACY | [2012] FMCA 878 |
| BANKRUPTCY – Creditor’s Petition – Filed one day out of time – Petition not opposed – Applicant submits that order extending time in which to file and serve Creditor’s Petition should be made pursuant to s.30(1)(b) of the Bankruptcy Act 1966 (Cth) – Order extending time made – Sequestration order made. |
| Bankruptcy Act 1966 (Cth) ss. 30(1)(b), 42, 43, 44, 52, 306 Civil Procedure Act 2005 (NSW) s.10 Federal Magistrates Act 1999 (Cth) s. 57 Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) rr. 4.02, 4.04, 4.05, 4.06 |
| Applicant: | JOHN MARKOS & ORS T/AS HICKSONS |
| Respondent: | BARBARA FLORENCE STACY |
| File Number: | SYG 1586 of 2012 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 11 September 2012 |
| Date of Last Submission: | 11 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Ms T. Sherif of Hicksons |
| The Respondent: | There was no appearance by the respondent |
ORDERS
A sequestration order be made against the estate of the respondent debtor, BARBARA FLORENCE STACY.
The applicant creditor’s costs, including reserved costs if any, be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
A copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.
Pursuant to s.30(1)(b) of the Bankruptcy Act 1966 (Cth), the time limit for the lodging of the Creditor’s Petition be extended by 1 day to 20 July 2012.
THE COURT NOTES THAT:
The date of the act of bankruptcy is 20 January 2012.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1586 of 2012
| JOHN MARKOS & ORS T/AS HICKSONS |
Applicant
And
| BARBARA FLORENCE STACY |
Respondent
REASONS FOR JUDGMENT
Introduction
On 20 July 2012 the applicant creditor, John Markos & Others Trading as Hicksons (“Hicksons”), filed a creditor’s petition in this Court against the respondent debtor, Barbara Florence Stacy, pursuant to a judgment of the District Court of NSW in proceedings 2010/248377 in favour of Hicksons in the amount of $20,536.26 (this amount includes subsequent interest pursuant to s.101 of the Civil Procedure Act 2005 (NSW)). On 11 September 2012 I made a sequestration order against the estate of the respondent debtor. These reasons give effect to those orders.
The proceedings were first listed before a registrar of the Court on 24 August 2012. Ms Sherif appeared on behalf of Hicksons and the respondent debtor, Ms Stacy, appeared in person. The mattered was adjourned to 31 August 2012. On 31 August 2012, Ms Sherif appeared before the Registrar and the matter was again adjourned to 10 September 2012 before a registrar. On 10 September 2012, the registrar referred the proceedings to this Court and the matter was listed for hearing on 11 September 2012.
Evidence
Hicksons sought to rely on the following evidence:
a)Affidavit of John Markos sworn 20 July 2012 (Part 2 of the Creditor’s Petition);
b)Affidavit of Service of Tamara Sherif sworn 20 July 2012;
c)Affidavit of Search of Tamara Sherif sworn 20 July 2012;
d)Affidavit of Final Search of Tamara Sherif sworn 11 September 2012;
e)Affidavit of Patricia Landuyt-Breedveld sworn 10 September 2011; and
f)Affidavit of Stephen Hensley Power sworn 10 August 2012.
Formal Requirements for Issuance of a Sequestration Order
The Court may make a sequestration order upon proof of the matters set out in s.52(1) of the Bankruptcy Act 1966 (Cth) (the “Bankruptcy Act”), and subject to the jurisdiction to make sequestration orders under s.43 of the Bankruptcy Act and the conditions on which the creditor may petition under s.44 of the Bankruptcy Act being met.
Section 52(1) of the Bankruptcy Act provides as follows:
(1)At the hearing of a creditor’s petition, the Court shall require proof of:
(a) The matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient),
(b) service of the petition; verified by an affidavit of service,
(c) the fact that the debt or debts on which the petitioning creditor relies or is still owing;
And, if it is satisfied with the proof of these matters, may make a sequestration order against the estate of the debtor.
Section 43 of the Bankruptcy Act provides that the Court may make a sequestration order when:
(a)A debtor has committed an act of bankruptcy (Bankruptcy Act s.43(1)(a)); and
(b)Relevantly, at the time when the act of bankruptcy was committed, the debtor was personally present and an ordinarily resident in Australia (Bankruptcy Act s.43(1)(b)(i)).
Section 44 of the Bankruptcy Act provides that the creditor’s petition is not to be presented, unless:
(a) The debt is more that $5,000;
(b)The debt is a liquidated sum due at law and payable immediately (Bankruptcy Act s.44(1)(b)); and
(c)The act of bankruptcy in which the petition is founded was committed within 6 months before the presentation of the petition (Bankruptcy Act s.44(1)(c)).
The applicant creditor is also obliged by the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) (“the FMC (Bankruptcy) Rules”) to put before the Court affidavits:
a)Verifying the petition (Bankruptcy Act s.47(1), FMC (Bankruptcy) Rules r.4.02);
b)As to search of records of the Court and of the Federal Court as to any application in relation to the Bankruptcy Notice (FMC (Bankruptcy) Rules rr.4.04(1)(a) and 4.04(2));
c)Of service of the Bankruptcy Notice (FMC (Bankruptcy) Rules r.4.04(1)(b));
d)Of service of the documents required to be served under the FMC (Bankruptcy) Rules r.4.05 (FMC (Bankruptcy) Rules r.4.06(2));
e)A search of the National Personal Insolvency Index no earlier that the day before the hearing date of the petition (FMC (Bankruptcy) Rules r.4.06(4)); and
f)Of debt which the creditor still relies as owing (FMC (Bankruptcy) Rules r.4.06(4)).
Some of the requirements under the FMC (Bankruptcy) Rules overlap with those under the Bankruptcy Act.
In relation to the matters requiring formal proof the Court finds as follows:
a)The matters stated in the petition are supported by the:
i)Affidavit of Tamara Sherif sworn 20 July 2012 accompanying the petition (Bankruptcy Act ss. 47 and 52(1)(a), FMC (Bankruptcy) Rules r.4.02). The Bankruptcy Notice was personally served on Michael Kirwan at Ray White Maitland at 10.10am on 14 December 2011 and by post on the respondent debtor pursuant to substituted service orders made in proceedings SYG2498/2011 in this court on 8 December 2011;
ii)Affidavit of John Markos sworn 20 July 2012 attached to the Creditor’s Petition verifying paragraphs 1, 2, 3 and 4 of the Creditor’s Petition;
b)The debt upon which Hicksons relies is still owing (Bankruptcy Act s.52(1)(c));
c)The respondent has committed an act of bankruptcy (Bankruptcy Act s.42(1)(a)) committed on 20 January 2012 pursuant to s.40(1)(g) of the Bankruptcy Act;
d)At the time of the act of bankruptcy was committed was committed the respondent:
i)Was ordinarily present in Australia; and
ii)Ordinarily resided in Australia (Bankruptcy Act s.43(1)(b));
e)The debt owed by the respondent is $20,536.26, being a sum more that $5,000.00 (Bankruptcy Act s.44(1)(a));
f)The debt of $20,536.26 is a liquidated sum, payable immediately (Bankruptcy Act s.44(1)(b));
g)The respondent, Barbara Florence Stacy, failed to comply on or before 20 January 2012 with the requirements of a bankruptcy notice served on her on 29 December 2011;
h)Searches of the records of this Court and the Federal Court have been made and no application has been made in either Court in relation to the Bankruptcy Notice;
i)The Bankruptcy Notice No. 2616 of 2011 was served on the respondent, Barbara Florence Stacy, by substituted service on the respondent debtor (FMC (Bankruptcy Rules r.4.04(1)(b));
j)That at least five days before the date fixed for the hearing of the petition the:
i)Petition (FMC (Bankruptcy) Rules r.4.05(a));
ii)A copy of the affidavit verifying the petition (FMC (Bankruptcy) Rules r.4.05(b));
iii)A copy of the affidavit of search of court records (FMC (Bankruptcy) Rules r.4.05(c)); and
iv)A copy of the affidavit of service of the Bankruptcy Notice (FMC (Bankruptcy) Rules r.4.05(d))
Were served on the respondent personally, Barbara Florence Stacy; Affidavit of Stephen Hensley Power sworn 10 August 2012;
k)The National Personal Solvency Index was searched on 11 September 2012 (the last business day before the petition was heard) (FMC (Bankruptcy) Rules r.4.06(3)) and that details of references in that index to the respondents are before the Court (FMC (Bankruptcy) Rules r.4.06(3)(a));
l)A copy of the relevant extract of the Index is attached to the affidavit of search of Tamara Sherif sworn 11 September 2012 (FMC (Bankruptcy) Rules r.4.06(3)(b)(i)); and
m)There is an affidavit of final debt of Patricia Landuyt-Breedveld sworn 10 September 2012, being a person with knowledge of the facts sworn the day before the hearing of the petition that the debt on which the applicant creditor relies is still owing (FMC (Bankruptcy) Rules r.4.06(3)(c)).
Hearing of 11 September 2012
At the hearing on 11 September 2012, Ms Sherif appeared on behalf of Hicksons and mentioned the respondent’s appearance by consent. Ms Sherif submitted that the respondent debtor did not oppose the making of a sequestration order. Ms Sherif also submitted that the petition had been filed one day out of time, and asked that the Court make an order under s.30(1)(b) of the Bankruptcy Act granting a retrospective one day extension of time for the Creditor’s Petition to be filed. Ms Sherif also relied on the affidavits filed and read into evidence in support of the making of a sequestration order.
Consideration
Relevantly, s.30(1)(b) of the Bankruptcy Act states:
30(1) General Powers
The Court:
(a) …
(b) may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter.
I am satisfied that an order extending by one day the time within which Hicksons could file and serve the Creditor’s Petition should be made. This is a matter where the making of a sequestration order is not opposed and is in the best interests of all parties for such an order to be made.
I am also satisfied that all of the statutory requirements in order to make a sequestration order have been satisfied, as well as the evidentiary basis for that decision set out above at [4] – [9] and I make the relevant orders for sequestration.
On 8 December 2011 in Federal Magistrates Court proceedings SYG2498/2011, a Registrar made orders for substituted service of Bankruptcy Notice No. 2616 of 2011 on the Respondent Debtor. I note that the entered Order stated that the Bankruptcy Notice was numbered No. “2616 of 2001” when, in fact, it was numbered “2616 of 2011”. In my view, this is a defect or irregularity saved by s.306 of the Bankruptcy Act; see also s.57 of the Federal Magistrates Act 1999 (Cth).
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 21 September 2012
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