Khan v Singh

[2021] FCCA 950

FEDERAL CIRCUIT COURT OF AUSTRALIA

Khan v Singh [2021] FCCA 950

File number(s):

SYG 1613 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

6 May 2021

Catchwords:

BANKRUPTCY – application for a sequestration order – where no other sufficient cause identified as to why a sequestration order ought not be made – where Court satisfied that the petitioning creditor established matters under ss 43 and 51 of the Bankruptcy Act 1966 (Cth) – sequestration order made

Legislation:

Bankruptcy Act 1966 (Cth), ss 27, 33, 43,51

Legal Profession Uniform Law Application Act 2014 (NSW), ss 83, 84, 86

Cases cited:

Singh v Fobupu Pty Ltd, in the matter of Singh [2021] FCAFC 14

Number of paragraphs:

11

Date of hearing:

6 May 2021

Place:

Sydney

Counsel for the Applicants:

Mr R Brown

Solicitor for the Applicants:

McGrath Dicembre & Co

Respondent:

In person

ORDERS

SYG 1613 of 2020

BETWEEN:

GHULAM KHAN

First Applicant

SAMINA KHAN

Second Applicant

FOBUPU PTY LTD

Third Applicant

AND:

GURJIT SINGH

Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	6 MAY 2021

THE COURT ORDERS THAT:

1.Leave to file the application in a case dated 6 May 2021 is refused.

2.Leave is granted to the applicants to amend the Creditor’s Petition in respect of the date of the act of bankruptcy, being 25 June 2020, and the Court dispenses with the need for the filing of an amended Creditor’s Petition.

3.A sequestration order is made against the estate of Gurjit Singh.

4.The Petitioning Creditors’ costs be paid out of the bankrupt estate in accordance with the priority to which they are entitled, in such amount as is agreed with the trustees and/or as assessed.

THE COURT NOTES THAT:

1.A consent to act as joint trustees has been filed by Innis Anthony Cull and Gess Michael Rambaldi.

2.The act of bankruptcy occurred on 25 June 2020.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a sequestration order within the Court’s jurisdiction under s 27 of the Bankruptcy Act 1966 (Cth) (“the Act”), in respect of a creditor’s petition that was filed on 6 July 2020. 

2. An affidavit has been read by the petitioning creditor that supports an act of bankruptcy occurring on 25 June 2020. 

3. Evidence has been read in support of the service of the bankruptcy notice, the creditor’s petition, the verification of the petition and the current affidavits of debt and search. 

4. A notice stating objection to the grounds of bankruptcy was filed on 14 April 2021.

5. The respondent first endeavoured to suggest that the debt was not currently due and owing because of s 86 of the Legal Profession Uniform Law Application Act 2014 (NSW) (“the LPUL Application Act”). It is apparent that that provision is dependent upon steps being taken in accordance with the time period identified in ss 83 and 84 of the LPUL Application Act. The section has no application and it does not support the contention that the judgment debt is not still currently owing. 

6. The respondent asked the Court to go behind the judgment, referring to the circumstances in which the judgement relating to outstanding rent was obtained. Nothing said by the respondent identified any proper basis to go behind the judgment the subject of the bankruptcy notice in respect of these proceedings.

7. The respondent also contended that he had been deprived of his rights to pursue an appellant challenge to the judgment debt because of alleged deceit by the petitioning creditor. There is no evidence to support those contentions. Nothing said by the respondent identified any proper basis as to why this Court should go behind the judgment debt. 

8. It is apparent that the respondent also seeks to have the matter adjourned, pending an application for special leave concerning a decision of the Federal Court of Australia refusing to set aside the bankruptcy notice. That decision of the learned Gleeson J was upheld by the Full Court of the Federal Court on 3 February 2021.[1] The Court is not persuaded that there is any prospect that the applicant’s application for special leave will succeed and considers the application hopeless, and does not identify any proper basis as to why the proceedings should be adjourned. The Court, taking into account the powers of adjournment, including s 33 of the Act, is not satisfied an adjournment is warranted in the interests of the administration of justice.

   [1] Singh v Fobupu Pty Ltd, in the matter of Singh [2021] FCAFC 14

9. Nothing else said by the respondent identified any other sufficient cause why a sequestration order ought not to be made. 

10. The Court is satisfied that the petitioning creditor has established the matters required under s 43 of the Act. The Court is satisfied the petitioning creditor has established the proofs required under s 51(1) of the Act. 

11. The Court is not satisfied that the respondent is able to pay his debts, and the Court is not satisfied that another sufficient cause why a sequestration order ought not to be made has been made out. The Court is satisfied that a sequestration ought to be made.

I certify that the preceding eleven (11) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 6 May 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       8 July 2021