Le-Serve v Gray
[2012] FMCA 770
•16 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LE-SERVE v GRAY | [2012] FMCA 770 |
BANKRUPTCY – Sequestration order – review – where applicant not present at hearing before Registrar at which sequestration order made due to administrative error – where orders made for hearing of matter – where orders not complied with by applicant – where applicant concedes insolvency – whether to set aside sequestration order.
| Federal Magistrates Court (Bankruptcy) Rules 2006 |
| Applicant: | MICHEL LE-SERVE |
| Respondent: | DAVID WARWICK GRAY |
| File Number: | SYG 1013 of 2012 |
| Judgment of: | Raphael FM |
| Hearing date: | 16 August 2012 |
| Date of Last Submission: | 16 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr R White |
| Solicitors for the Respondent: | Somerville Legal |
ORDERS
Application dismissed.
Respondent’s costs of the application to be paid from the estate of the bankrupt.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1013 of 2012
| MICHEL LE-SERVE |
Applicant
And
| DAVID WARWICK GRAY |
Respondent
REASONS FOR JUDGMENT
On 30 March 2012 a sequestration order was made against the estate of Michel Le-Serve by Registrar Tesoriero. On 9 May 2012 Mr Le-Serve filed an application for review of that order. The substantive ground of review was that he had received a document from the court indicating that the hearing date of the petition had been amended to 30 April 2012 but it was in fact heard on 30 March which was another date that appeared on the amended petition.
The matter came before me on 2 July 2012 when I made orders relating to the hearing of the matter, including orders for the filing of evidence, orders that the applicant complied with r.7.06 of the Federal Magistrates Court (Bankruptcy) Rules 2006 and requiring the trustee to provide the court with a notification of his position.
Mr White of counsel has appeared for Mr Le-Serve and attends court today. He informed me that he had spoken with Mr Le-Serve who told him that he could not meet the debt he owes to Mr Gray, the petitioning creditor, and he accepts that he is insolvent.
Mr Le-Serve has not complied with any of the orders that I made and it seems to me that this is one of those cases in which even though there has been clearly an error of an administrative nature made which led to Mr Le-Serve not attending the first hearing, I should not set aside the sequestration order.
The Trustee has kindly provided the court with a report which indicates that Mr Le-Serve owes the petitioning creditor $344,606.30. He owes some $1,100.00 on a Caltex card and $5,500.00 on a Westpac credit card. He also owes a firm of lawyers about $132,000 for work completed in relation to certain litigation. His only asset appears to be a 50 per cent share in a pool of approximately $110,000.00.
As Mr White has no further instructions from his client and as the respondent to the application, the petitioning creditor, seeks to have the application dismissed I believe that it is appropriate so to do. The application will be dismissed. The respondent’s costs of the application will be paid from the estate of the bankrupt.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 24 August 2012
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