Lumley General Insurance Limited v Gordon

[2006] FMCA 850

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LUMLEY GENERAL INSURANCE LIMITED v GORDON [2006] FMCA 850

BANKRUPTCY – Review of sequestration order – application by creditor to set aside sequestration order and dismiss petition – prior sequestration order against estate of debtor.

Bankruptcy Act 1966 (Cth)
Federal Magistrates Court Rules 2001, r.16.05

Austral Bricks v Tome Daskalovski [1998] FCA 872

Applicant: LUMLEY GENERAL INSURANCE LIMITED

Respondent: NICOLE GORDON

File Number: SYG239 of 2006

Judgment of: Barnes FM

Hearing date: 23 May 2006

Delivered at: Sydney

Delivered on: 23 May 2006

REPRESENTATION

Solicitors for the Applicant: Turks Legal

Solicitors for the Respondent: No appearance

ORDERS

1. The sequestration order of 4 May 2006 be set aside.

2. The creditor's petition filed by the applicant be dismissed.

3. The applicant pay any costs of the Trustee, Scott Pascoe, as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.

4. A copy of this order be provided to the Official Trustee in Sydney within two (2) days of today's date.    

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG239 of 2006

LUMLEY GENERAL INSURANCE LIMITED

Applicant

And

NICOLE GORDON

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of Registrar Segal to make a sequestration order against the estate of Nicole Gordon on 4 May 2006.  The application is brought by the petitioning creditor.  The sequestration order was made in the absence of the debtor.

2. This application is brought because it was subsequently discovered by the solicitors for the applicant creditor that a sequestration order had already been made against the estate of the respondent, Ms Gordon, on 13 April 2006.  Hence it is sought that the sequestration order of 4 May 2006 be set aside and the creditor’s petition be dismissed. 

3. Following the sequestration order made on 4 May 2006 Scott Pascoe was appointed trustee of the estate of Ms Gordon.  According to the affidavit of Lisa Gaye Dorman sworn on 15 May 2006, Mr Pascoe was notified of the fact that there was already a sequestration order and of these proceedings.  He indicated that he would not do anything further after notification on 9 May 2006.  He has not sought to oppose the setting aside of the sequestration order.  Neither Mr Pascoe, Brian Silvia, the Trustee appointed following the making of the sequestration order on 13 April 2005 or the debtor has appeared today.  The debtor and trustees were served with copies of the application for review and supporting affidavits. 

4. The Court has power to consider the present application de novo as a review of a Registrar's decision. I am satisfied that a sequestration order against the estate of the respondent was made on 13 April 2006. The sequestration order of 6 May 2006 was made in the absence of the debtor (see Rule 16.05 of the Federal Magistrates Court Rules 2001 and Austral Bricks v Tome Daskalovski [1998] FCA 782). It is the petitioning creditor who seeks to have the sequestration order set aside and the creditor’s petition dismissed. I consider that in these circumstances it is appropriate to make the orders sought by the creditor.

5. That leaves unresolved the question of whether Scott Pascoe has incurred costs as trustee.  The solicitor for the applicant agreed that to cover that eventuality the orders to be made should include an order that the applicant pay any costs of Mr Pascoe as the trustee. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  21 June 2006