Jones v Mirigliani
[2010] FMCA 775
•11 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JONES v MIRIGLIANI | [2010] FMCA 775 |
| BANKRUPTCY – Section 121 of the Bankruptcy Act 1966 (Cth) – payments declared void – costs and interest. |
| Bankruptcy Act 1966 (Cth) |
| Applicant: | NORMAN KENNETH JONES (as trustee of the property of LISA MIRIGLIANI, a bankrupt) |
| Respondent: | GUISEPPE MIRIGLIANI |
| File Number: | MLG 1511 of 2009 |
| Judgment of: | Hartnett FM |
| Hearing date: | 10 May 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 11 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kohn |
| Solicitors for the Applicant: | Herman Partners |
| The Respondent: | No appearance |
ORDERS
The payments of $13,289.72 and $143,518.56 from Lisa Mirigliani (“the bankrupt”) to the respondent on 21 October 2008 and 14 November 2008 respectively ARE DECLARED void as against the applicant, the trustee in bankruptcy, pursuant to ss.120 and 121 of the Bankruptcy Act 1966 (Cth).
The respondent pay the applicant the sum of $156,808.28 being the amounts referred to in Order 1.
The respondent pay the applicant interest in the sum of $24,064.15 together with costs to be taxed in default of agreement.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1511 of 2009
| NORMAN KENNETH JONES (as trustee of the property of LISA MIRIGLIANI, a bankrupt) |
Applicant
And
| GUISEPPE MIRIGLIANI |
Respondent
REASONS FOR JUDGMENT
These proceedings commenced by the filing of an application on
24 November 2009. The applicant sought orders that I this day make.
In support of the application, was an affidavit sworn by Mr Norman Kenneth Jones, Trustee of the bankrupt estate of Lisa Mirigliani. That affidavit was sworn 23 November 2009. The relevant facts determined by the Court on the balance of probabilities are as follows:
(a)the bankrupt wife, Lisa Mirigliani, became a bankrupt by reason of a sequestration order made in this Court on 3 February 2009. Mr Jones was appointed as Trustee of the bankrupt estate by the Insolvency and Trustee Service Australia;
(b) the respondent in these proceedings is the bankrupt's husband;
(c)on or about the 19 September 2008, the bankrupt was the sole registered proprietor of a property situated at and known as 477 Highbury Road Burwood East in the State of Victoria (“the Burwood East property”). That property is more particularly described in Certificate of Title volume 10746 folio 970. The bankrupt first became the sole registered proprietor of the Burwood East property on 19 May 1992. She ceased to be the sole registered proprietor of such property on 29 December 2008 when the property was sold by her, for the sum of $499,990. The property was sold to an unrelated, arm's length purchaser;
(d)the bankrupt signed an exclusive sale authority for the Burwood East property on 25 August 2008, whereby Eastern Growth Proprietary Limited, trading as Stockdale and Leggo Real Estate (Mount Waverley) was appointed the selling agent for the said property;
(e)annexed as an exhibit to the affidavit of Mr Jones, is exhibit NKJ11. This exhibit is a copy of a letter from Belleli King and Associates, solicitors acting on behalf of the bankrupt wife in respect of the sale of the Burwood East property. That letter is addressed to Stockdale and Leggo, and dated 21 October 2008. That letter requests the selling agents to account sales to Belleli King, but to otherwise deposit the balance of the deposit moneys into the bank account of Mr Giuseppe Mirigliani, the respondent, with account details being Commonwealth Bank, BSB 063-531, account number 1041 2472. On 22 October 2008, the balance of deposit moneys in the sum of $13,289.72 was deposited into that account;
(f)a settlement of the Burwood East property on 14 November 2008, amongst the cheques to be handed over at settlement, included a cheque in favour of the respondent, Giuseppe Mirigliani, in the sum of $143,518.56. Exhibit NKJ15 to the affidavit of Mr Jones, is a copy of a Commonwealth Bank of Australia bank cheque, dated 14 November 2008, in favour of Giuseppe Mirigliani, in the sum of $143,518.56;
The payments in the respective sums of $13,289.72 and $143,518.56 to the respondent constitute a transfer, as that expression is used in sections 120 and 121 of the Bankruptcy Act 1966 (Cth). Each of these payments took place in the relevant period before the commencement of the bankruptcy of the bankrupt. The respondent gave no consideration for the payments.
By letter of 30 July 2009, the Trustee of the bankrupt estate demanded of the respondent the payment of the sum of $143,518.56, being the second of the payments in these proceedings, he, at the time, being not aware of the additional payment of the sum of $13,289.72 to the respondent from out of the deposit moneys received by the selling agents for the Burwood East property. In response to that communication, the respondent emailed, by email dated 3 August 2009, to the Trustee in the following terms:
In response to letter dated 30 July 2009 am I aware that Lisa Mirigliani was made Bankrupt on 3rd February 2009 NO, but ok thanks for that personal information.
As for the residence at 477 Highbury rd Burwood east was sold and settled and funds paid directly to me as the settlement amount was mine.
Mr Jones I G. Mirigliani am not bankrupt and have no involvement in the bankruptcy of Lisa Mirigliani.
Transfer of property has never occurred as the above mentioned property was mine and solely mines and money is mine.
The residual amount of $143,518.56 and what I have done with it may need legal advice should I need legal advice please advise, any expense incurred by me for this issue I shall seek reimbursement from cja insolvency and forensic accountants
Yours faithfully
G Mirigliani.
Mr Mirigliani swore and filed an affidavit on 1 March 2010, wherein he claims the funds from the sale of the Burwood East property belong to him. He swore in that affidavit that his subsequent application of the funds was his personal business. The only other document filed by the respondent in the proceedings is a document headed “Affidavit of Documents”, filed 6 April 2001, but not sworn. No documents have ever been produced in the proceedings by the respondent.
The respondent did not attend the hearing this day. He is not available by email. He is not available by mail. He currently has provided neither the Court nor the applicant with a notice of address for service, and he was unable to be contacted by telephone when the Court attempted to do so, on his last known telephone number. The respondent communicated with the Court in a document filed 10 May 2010 claiming to have been unable to contact the Court via telephone to confirm the adjournment requested by him. That request was an earlier handwritten communication by him, of 5 May 2010, wherein he requested an adjournment because he was unable to attend the hearing. In response to that request, the solicitors for the applicant wrote to the respondent, a letter dated 3 May 2010, which the respondent received, setting out that they intended to brief counsel and proceed this day. The solicitors indicated that they would be seeking judgment in the matter, as a matter of urgency, and would vigorously oppose any application for an adjournment. They further indicated they would be agreeable to the Court contacting the respondent, with a view to him participating in the hearing by telephone, if he did not attend in person.
The respondent fails to appear. I do not accede to his written request for an adjournment of a month, which was not consented to by the other party, and in circumstances where the respondent provides no address for service, no telephone number, no email address or means of communicating with him in any way, and in circumstances where the matter is listed for final hearing. I note the affidavit of Dominique Susan Tudor, sworn 10 May 2010, as to her attempts to contact and communicate with the respondent on 3 May 2010, and again on 7 May 2010. I accept her evidence as contained therein. No affidavit material has been filed by the respondent that provides any defence to the application. Accordingly I will accede to the orders sought.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Deputy Associate:
Date: 7 October 2010
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