FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MACQUARIE LEASING PTY LTD v DEKKAN & ANOR | [2009] FMCA 349 |
| BANKRUPTCY – Petition against joint debtors – one debtor already made bankrupt and appeal outstanding – identification of date of act of bankruptcy – effectiveness of extensions of time for compliance with bankruptcy notice – oral application for amendment of petition as to date of non‑compliance – application refused – petition adjourned against both debtors. |
| Bankruptcy Act 1966 (Cth), ss.41(6A), 41(7) Federal Court (Bankruptcy) Rules 2005 (Cth), r.3.03 Federal Magistrates Court Rules 2001 (Cth) |
| Applicant: | MACQUARIE LEASING PTY LTD ACN 002 674 982 |
| First Respondent: | BASSAM DEKKAN |
| Second Respondent: | JEANETTE DEKKAN |
| File Number: | SYG 1871 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 14 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 14 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Glover |
| Solicitors for the Applicant: | Douros Lawyers |
| Counsel for the Respondents: | First Respondent in person |
ORDERS
The petition is adjourned to 19 May 2009 at 9.30 am for directions only.
The applicant must file and serve any interim application to amend the petition and any supporting affidavits no later than 8 May 2009. Such application is to be returnable for directions on 19 May 2009 at 9.30 am.
Costs reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1871 of 2008
| MACQUARIE LEASING PTY LTD ACN 002 674 982 |
Applicant
And
| BASSAM DEKKAN |
First Respondent
| JEANETTE DEKKAN |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is a creditor’s petition which was filed 21 July 2008 by Macquarie Leasing Pty Ltd (“Macquarie Leasing”). It sought sequestration orders against two debtors, Mr and Mrs Dekkan. Mr Dekkan appeared today and spoke on behalf of himself and his wife. Macquarie Leasing accepts that the petition against Mr Dekkan should be adjourned, but not the petition against Mrs Dekkan. However, for the reasons which follow, I have decided that it should be adjourned in relation to both debtors.
Paragraph 1 of the petition asserted that the debtors both owe Macquarie Leasing the amount of $23,661.98 pursuant to a default judgment in the Local Court of New South Wales and some interest. Paragraph 4 of the petition is in the following terms:
The following act of bankruptcy was committed by the First and Second Respondent Debtors within 6 months before the presentation of this petition:
The First and Second Respondent Debtors failed to comply on or before 9 July 2008 with the requirements of a bankruptcy notice served on them on 8 May 2008 or to satisfy the Court that they had a counter‑claim, set‑off or cross demand equal to or more than the sum claimed in the bankruptcy notice, being a…
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- Case
- [2009] FMCA 349
- Decision Date
CaseChat Overview and Summary
The court held that the debt claimed by Macquarie Leasing was not owed by Dekkan but by the related entity. The court found that Dekkan was not liable for the debt, and therefore, the application for winding up should be dismissed. The court reasoned that the evidence presented demonstrated a clear separation between Dekkan and the related entity, and that the debt claimed was incurred solely by the related entity. The court further held that the applicant had not discharged the onus of proving that Dekkan was liable for the debt claimed, and therefore, the application for winding up should be dismissed. The court reserved the issue of costs.
The Federal Court of Australia dismissed the application for winding up of Dekkan. The court found that Dekkan was not liable for the debt claimed by Macquarie Leasing, and that the debt was incurred solely by a related entity. The court adjourned the petition to 19 May 2009 for directions only, and ordered that any interim application to amend the petition and any supporting affidavits must be filed and served no later than 8 May 2009. The court reserved the issue of costs.
Orders
Orders of the court
1.
The petition is adjourned to 19 May 2009 at 9.30 am for directions only.
2.
The applicant must file and serve any interim application to amend the petition and any supporting affidavits no later than 8 May 2009. Such application is to be returnable for directions on 19 May 2009 at 9.30 am.
3.
Costs reserved.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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