Keily v Shortall
[2004] FMCA 609
•6 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KEILY & ANOR v SHORTALL | [2004] FMCA 609 |
| BANKRUPTCY – Review of Registrar’s decision – sequestration order – insufficient details provided in Application for Review – whether rehearing or annulment. |
Bankruptcy Act 1966, s.153B
Dey v Victorian Railways Commissioner (1949) 78 CLR 62
| Applicants: | KRISTIAN KEILY and SAMANTHA HILL |
| Respondent: | MARK ANTHONY SHORTALL |
| File No: | MLG 799 of 2004 |
| Delivered on: | 6 September 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 6 September 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Solicitor for the Applicants: | Ms R Fahey |
| Solicitors for the Applicants: | Leonard Deane Lawyers |
| Respondent: | In person |
ORDERS
The application for review filed 30 August 2004 be dismissed.
The debtor shall pay the creditors’ costs which costs shall be paid out of the bankrupt estate of the debtor.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 799 of 2004
| KRISTIAN KEILY and SAMANTHA HILL |
Applicants
and
| MARK ANTHONY SHORTALL |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review by Mark Anthony Shortall (the debtor) filed 30 August 2004. The application for review provides no details of orders sought to be reviewed, or of orders sought, although otherwise purports to rely upon an affidavit sworn by the debtor on 30 August 2004.
The court assumes that the application for review is from an order made on 24 August 2004 when, amongst other orders, a registrar of this court made a sequestration order against the estate of the debtor upon application by Kristian Keily and Samantha Hill (the creditors).
The sequestration order was made in reliance upon the usual affidavits in support. When the matter was called on this day the deficiency which is apparent in the application for review was brought to the court's attention by the creditors’ representative who sought an adjournment to enable the creditors to properly assess first the nature of the application for review, that is, the grounds relied upon, and otherwise sought clarification of the basis upon which the application for review is before this court.
Prior to the luncheon adjournment the court invited the debtor to consider whether he wished to file and serve an amended application for review. He indicated that due to his financial circumstances, at least from the bar table, that he preferred not to delay the matter and preferred to proceed.
The sequestration order was made in this matter upon a bankruptcy notice which in turn relied upon what has been described as a default judgment against the debtor entered in the Magistrates Court at Melbourne on 18 May 2004 in the sum of a claim of $9007.90 together with interest and costs. The interest and costs amount of $538.62 and $2166.20 respectively. Hence, the claim by the creditor against the debtor in the bankruptcy notice is for a debt of $11,712.72.
As I indicated, the usual documents, including affidavits of service, and other material in support of the petition which was ultimately filed on 21 June 2004 were relied upon and before the court on 24 August 2004. The difficulty in the present case is to determine from the material whether or not the application is simply a rehearing or a form of application for annulment. In any event, it seems to me appropriate to at the very least refer to the affidavit of the debtor who in the affidavit sworn 30 August 2004 in brief terms asserts clearly the debt which was the subject of the judgment in the state Magistrates Court to which I have referred was not his debt but rather a debt between the creditors and the debtor's brother. He claims the debt was for parking fines incurred by the creditors for his brother and claims to be in no way responsible for the debt. He otherwise takes issue with what is described as services rendered or money lent by the creditors.
At present, no application has been made by the debtor to set aside the judgment in the state Magistrates Court. He has indicated from the bar table an intention to make an application. That application will be dealt with no doubt on its merits if and when it is made and if and when an extension of time, if needed, is considered and granted. The matter was before the court on 24 August 2004. A sequestration order was made on that date based on the material then before the court. The application for review is deficient in that it seeks to neither refer to the orders to be reviewed or gives any indication of the orders now sought.
Even assuming that the Review might possibly constitute an annulment application or a hearing de novo, in my view, the material is so hopelessly deficient on the face of it and its content as to provide no proper basis upon which this court could continue to entertain the application in its present form. In my view, having regard to the authorities in relation to a summary dismissal, it is clear the court, particularly for an unrepresented applicant, should be careful not to summarily dismiss a matter without good cause (see Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91).
In this application, however, on the face of it there is no basis upon which in my view the grounds are set out for a review, let alone reference specifically to the order which I have assumed was the order of 24 August 2004. It is regrettable that the debtor has not taken the opportunity to properly provide additional material, but that is a choice he has made after a number of opportunities were provided for him to consider his position. It seems to me, further, that even if I were not minded to summarily dismiss the matter, I would dismiss it even on the assumption that it was an application by way of rehearing or even if
I were to interpret it as an application under s.153B of the Bankruptcy Act 1966, there is no material before me which would justify this court going behind the judgment in the Magistrates Court on the material before me despite the concerns raised by the debtor in relation to the judgment, and nor is there any other material before me as to solvency or other issues I might consider relevant. Further, I am not satisfied, in any event, that it could properly be said the sequestration order ought not to have been made.
For those reasons the application for review filed 30 August 2004 will be dismissed. The applicant debtor shall pay the creditors’ costs; that is, those costs shall be costs paid out of the bankrupt estate of the debtor.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 6 September 2004
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