Little Creatures Brewing Pty Ltd v Bordin

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LITTLE CREATURES BREWING PTY LTD v BORDIN [2006] FMCA 302

BANKRUPTCY – Sequestration Order – solvency – whether refinancing through family relevant – oral loan agreement – whether sufficient evidence of solvency – whether Corporations Act provisions similar to Bankruptcy Act – ability to pay not required “from his own moneys”.

Bankruptcy Act 1966, s.5, 52(2)(a), 95A
Corporations Act 2001, s.95A

Lewis & Anor v Doran (2004) 208 ALR 385
Sandell v Porter (1966) 115 CLR 666
Harrison v Lewis (2001) 19 ACLC 566
Re Sarina; Ex parte Wollondilly Shire Council (1980) 43 FLR 163
Re Capel Ex parte Caram Finance Australia Ltd (unreported) FCA per Finn J 9 April 1998
International Alpaca Management Ltd v Ensor (1999) FCA 72

Applicant: LITTLE CREATURES BREWING PTY LTD (ACN 083 392 303)

Respondent: DOMENIC BORDIN

File Number: MLG 1165 of 2005

Judgment of: McInnis FM

Hearing date: 22 February 2006

Delivered at: Melbourne

Delivered on: 3 March 2006

REPRESENTATION

Counsel for the Applicant: Mr S.J. Waldron

Solicitors for the Applicant: Mallesons Stephen Jacques

Counsel for the Respondent: Mr M.J. Galvin

Solicitors for the Respondent: Madgwicks

Solicitor for the Supporting Creditor – Australian Taxation Office: Ms R Hannan

Solicitors for the Supporting Creditor – Australian Taxation Office: ATO Legal Services

Solicitor for the Supporting Creditor – Tasman Liquor Traders: Mr L Blake

Solicitors for the Supporting Creditor – Tasman Liquor Traders: Hunt & Hunt

ORDERS

1. A Sequestration Order be made against the estate of Domenic Bordin.

2. The Applicant Creditor’s costs be taxed in accordance with the Federal Court Rules and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1165 of 2005

LITTLE CREATURES BREWING PTY LTD (ACN 083 392 303)

Applicant

And

DOMENIC  BORDIN

Respondent

REASONS FOR JUDGMENT

1. This is a creditors petition filed by Little Creatures Brewing Pty Ltd ("the creditor") seeking a sequestration order against Domenic Bordin ("the debtor").  The petition has been the subject of notices of appearance filed by two supporting creditors, namely the Deputy Commissioner of Taxation of the Commonwealth of Australia and Tasman Liquor Traders Pty Ltd (in Liquidation) ("the supporting creditors").

2. The creditors petition relies upon a bankruptcy notice issued on 18 May 2005.  The bankruptcy notice claims that the debtor owes the creditor the amount of $29,895.14, being moneys owed to the creditor arising from a default judgment obtained in the Supreme Court of Tasmania at Hobart in proceedings number 516 of 2004 on 22 December 2004. 

3. There is no issue taken in relation to the service of the bankruptcy notice and at the date of hearing updated affidavits as required were filed deposing to proof of debt and that the appropriate searches having been undertaken. 

4. The debtor has relied upon a notice of intention to oppose the petition filed 28 November 2005.  In that notice the debtor refers to the following grounds:-

   “1. Applications for a refinancing of two large…