Kernville Pty Ltd v Robalino, Anair Noemi

[1997] FCA 1576

FEDERAL COURT OF AUSTRALIA

KERNVILLE PTY LIMITED V ANAIR NOEMI ROBALINO AND CARLOS ROBALINO

NG 7336  of   1997

JUDGE:  BEAUMONT J.
PLACE:  SYDNEY
DATE:  19 DECEMBER 1997
REASONS PUBLISHED:   17 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7336  of   1997

BETWEEN:

KERNVILLE PTY LIMITED
APPLICANT

AND:

ANAIR NOEMI ROBALINO
FIRST RESPONDENT

CARLOS ROBALINO
SECOND RESPONDENT

JUDGE:

BEAUMONT J

DATE OF ORDER:

19 DECEMBER 1997

REASONS PUBLISHED:

17 MARCH 1998

WHERE MADE:

SYDNEY

ORDERS:

1. Make sequestration orders against the estates of each of the respondent debtors.

1. The applicant creditor’s costs (including reserved costs) be paid out of the respondent debtors’ estates.

1. The operation of these orders be suspended up to and including 24 December 1997.

1. Liberty to apply be reserved to vary or discharge these orders before that date.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7336 of 1997

BETWEEN:

KERNVILLE PTY LIMITED
APPLICANT

AND:

ANAIR NOEMI ROBALINO
FIRST RESPONDENT

CARLOS ROBALINO
SECOND RESPONDENT

JUDGE:

BEAUMONT J

DATE:

19 DECEMBER 1997

REASONS PUBLISHED:

17 MARCH 1998

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Before the Court is a creditor’s petition for a sequestration order against the estates of the debtors, Anair Noemi Robalino and her husband Dr Carlos Robalino.  At the commencement of these proceedings, the applicant petitioner, Kernville Pty Ltd, claimed a total debt in the region of $10,255.31 against the debtors, being the unpaid amount and interest due under the final judgment in the Local Court of 22 July 1996.  This sum is calculated on the judgment debt and interest accrued on that debt, less a payment made.  The petitioner held security over the property of the debtors as second mortgagee for the payment of this sum.  By the time of the hearing of the petition the debt was in the region of $17,500.

Within the six month period prior to the presentation of this petition, the debtors are alleged to have committed the following act of bankruptcy:  viz. that they failed, on or before 19 October 1996, either to comply with the requirements of a Bankruptcy Notice served on them, or to satisfy the Court that they had a counter-claim, set-off or cross demand equal to or exceeding the sum specified in the petition.  But this claim is contested.  The debtors contend that an agreement was entered into with the creditor in March or April of 1997 whereby payment of the debt was secured to the satisfaction of the creditor.

Irrespective of the existence of that agreement, subsequently a deed of agreement was entered into between the debtors and the creditor and a third party, Elias Juanas, on 28 November 1997.  Under the deed, the debtors acknowledged that a debt of $2,500 was still owing to the creditor, and that an additional debt of $15,000 (being the agreed costs between the parties (to the date of the deed) in respect of the Local Court and Federal Court proceedings) was owing.  The mortgages held by the creditor were discharged, but the debtors were not then released from their personal covenants.  The balance of the monies owed was payable by 15 December 1997.  If unpaid, the debtors, by the terms of the deed, consent to the making of a sequestration order against them by the Court.  It appears that the deed was prepared in circumstances where the debtors had legal representation.

Dr Robalino appeared in person on the hearing of the petition.  In oral argument he claimed, inter alia, that the debt claimed by the petitioner had never been demonstrated to be due, that there was a cross-claim that had not previously been advanced, and that the default judgment in the Local Court should be reviewed.

In the circumstances, there is, in my opinion, no ground for a review of the default judgment.  This Court is a court of bankruptcy, whose primary responsibility is to the general body of creditors.  Nor is this Court a debt collection agency. 

In this connection, it should be noted that application was made by the debtors to set aside the default judgment in the Local Court, in which, inter alia, allegations of misrepresentation were made against a director of the creditor.  On this application, affidavit evidence by the debtors was relied on.  A Registrar delivered written reasons in which the application was dismissed.  An application was then made to review the Registrar’s decision, but leave for this purpose was refused.  Moreover, as has been noted, the debtors signed the deed acknowledging the debt, and did so with the benefit of legal advice.

In all the circumstances, and given especially the circumstance that the debtors are clearly unable to obtain any re-finance, I have no option but to declare a state of bankruptcy.

The formal orders I make are as follows.  I note the consent of Arthur William Butterell dated 11 July 1997 to act as trustee of the estates of each of the debtors.  I make a sequestration order against the estates of each of the debtors. I order that the creditor’s costs (including reserved costs) be paid out of the debtors’ estates.  I further order that the operation of these orders be suspended up to and including 24 December 1997, and I reserve liberty to apply to vary or discharge these orders before that date.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:            17 March 1998

Counsel for the Applicant:	J Armfield
Solicitor for the Applicant:	Cabarrus & Associates
Counsel for the Respondent:	Dr Robalino (appeared in person)
Date of Hearing:	19 December 1997
Date of Judgment:	19 December 1997
Date of Publication of Reasons:	17 March 1998