Mannis v Official Receiver, I.T.S.A

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MANNIS v OFFICIAL RECEIVER, I.T.S.A. [2003] FMCA 228

BANKRUPTCY – Annulment agreement to subpoena witness not granted where the Court was likely to exercise its decision in favour of the applicant – application dismissed.

Bankruptcy Act 1966 (Cth), s.153B

Stankiewicz v Plato (2000) FCA 1185

Applicant: GARY MANNIS

Respondent: OFFICIAL RECEIVER, INSOLVENCY & TRUSTEE SERVICE AUSTRALIA

File No: MZ 1144 of 2002

Delivered on: 22 April 2003

Delivered at: Melbourne

Hearing Date: 22 April 2003

Judgment of: Bryant CFM

REPRESENTATION

Counsel for the Applicant: Mr Mannis in person

Solicitors for the Applicant: Mr Mannis in person

Counsel for the Respondent: Mr Lhuede

Solicitors for the Respondent: Gardens Lawyers

ORDERS

1. That the Application filed 13 November 2002 for Annulment of Bankruptcy be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1144 of 2002

GARY MANNIS

Applicant

And

OFFICIAL RECEIVER, INSOLVENCY & TRUSTEE SERVICE AUSTRALIA

Respondent

REASONS FOR JUDGMENT

1. This Application comes before me by way of an application by Gary Mannis, who was formerly Agreros Gary Kachrimanis, pursuant to section 153B of the Bankruptcy Act 1966 (Cth) (“the Act”) to annul the bankruptcy.

2. The date of bankruptcy in this case was 10 March 1989.  The application is somewhat unusual in that the sequestration order was made on the debtor's own petition.  The Official Receiver is represented and has assisted with useful submissions in the matter but in relation to the application itself, neither opposes nor contends in favour of an order as sought.

3. The applicant has sought an adjournment of the hearing today to another date to enable him to call a number of witnesses.  He has handed me up a schedule of seven witnesses he wishes to call and has indicated this morning that there are two other witnesses he would also like to call; that is, there would be nine witnesses in total.  To the extent that an adjournment is sought, the Official Receiver opposes that adjournment and seeks that the court deal with the matter today.

4. In considering whether to adjourn the matter, it appears to me that I must look to the merits of the application itself because if it is unmeritorious on its face, then in my view it would constitute or be likely to constitute an abuse of process to allow the applicant to subpoena the various witnesses that he wishes to call.

5. The background to the matter is contained in the application of the applicant filed 13 November 2002, the report by the Official Receiver which is annexed to the affidavit of the Official Receiver filed 4 February 2003 and partly from the facts presented in submissions to me this morning which were not the subject of any dispute.

6. The background to the presentation of the debtor's petition is set out in the report by the Official Trustee.  It appears that in June 1984 a company called 66th Jettison Pty Ltd was incorporated.  The company traded as Greek-Australian promotions for the purpose of organising a tour by a…