FEDERAL COURT OF AUSTRALIA
Mayart Pty Ltd v Knight [2023] FCA 218
File number(s): VID 182 of 2022 Judgment of: O'BRYAN J Date of judgment: 15 March 2023 Catchwords: BANKRUPTCY AND INSOLVENCY – creditor’s petition – bankruptcy notice based on failure to pay judgment debt – whether Court should go behind judgment debt – insufficient basis to go behind judgment debt – sequestration order made Legislation: Bankruptcy Act 1966 (Cth) ss 5, 40, 43, 44, 47, 52
Federal Court of Australia Act 1976 (Cth), s 35A(7)(b)
Federal Court (Bankruptcy) Rules 2016 (Cth) rr 4.05, 4.06
Property Law Act 1958 (Vic), s 134
Cases cited: Doggett v Commonwealth Bank of Australia [2019] FCAFC 19
Cain v Whyte (1933) 48 CLR 639
Knight v Mayart Pty Ltd [2022] VSCA 36
Mayart Pty Ltd v Knight [2020] VCC 1929
Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 59 Date of hearing: 14 March 2023 Counsel for the Applicant: Dr M Wolff Solicitor for the Applicant: Noble Lawyers Pty Ltd Counsel for the Respondent: The Respondent was self-represented
ORDERS
VID 182 of 2022 BETWEEN: MAYART PTY LTD AS TRUSTEE FOR MAYART PROPERTY TRUST (ACN 007 001 176)
Applicant
AND: MICHAEL KNIGHT
Respondent
ORDER MADE BY:
O'BRYAN J
DATE OF ORDER:
15 MARCH 2023
THE COURT ORDERS THAT:
1.A sequestration order under the Bankruptcy Act 1966 (Cth) (Act) be made against the estate of Michael Knight.
2.The applicant’s costs be taxed and paid from the bankrupt estate of Michael Knight in accordance with the Act.
THE COURT NOTES THAT:
3.The date of bankruptcy is 15 October 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’BRYAN J:
INTRODUCTION
On 11 April 2022, the applicant, Mayart Pty Ltd (Mayart) as trustee for the Mayart Property Trust, presented a creditor’s petition seeking a sequestration order against the estate of the respondent, Michael Knight, under s 43 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act). Subsequent petitions, in the same terms, were presented on 1 June 2022 and 12 July 2022.
The creditor’s petition is founded upon Mr Knight’s failure to comply, on or before 4.30pm on 15 October 2021, with the requirements of a bankruptcy notice served on him on 4 August 2021 (Bankruptcy Notice) or to satisfy the court that he had a counterclaim, set-off, or cross-demand equal to or more than the sum claimed in the bankruptcy notice, being a counterclaim, set-off, or cross-demand that he could not have set up in the action in which the judgment referred to in the Bankruptcy Notice was obtained.
The Bankruptcy Notice claims the amount of $578,662.68 as owing by virtue of an…
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- AGLC
- Mayart Pty Ltd v Knight [2023] FCA 218
- Case
- [2023] FCA 218
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether it should consider the circumstances surrounding the judgment debt on which the bankruptcy notice was based, or whether it should accept the judgment debt as conclusive evidence of the debt. The court found that there was insufficient basis to go behind the judgment debt, and thus accepted the debt as owing.
In reaching its decision, the court considered the statutory framework provided by the Bankruptcy Act 1966, which sets out the process for creditor’s petitions and the conditions under which a sequestration order may be made. The court found that Mayart had satisfied the statutory requirements for proving the matters stated in the petition, serving the petition, and demonstrating that the debt was still owing. The court also noted that Knight had failed to make out any grounds of opposition to the petition.
As a result of the court’s decision, a sequestration order was made against Knight’s estate, and his costs were to be taxed and paid from the bankrupt estate in accordance with the Act. The date of bankruptcy was fixed as 15 October 2021.
Orders
Orders of the court
1. A sequestration order under the Bankruptcy Act 1966 (Cth) (Act) be made against the estate of Michael Knight.
2. The applicant’s costs be taxed and paid from the bankrupt estate of Michael Knight in accordance with the Act.
THE COURT NOTES THAT:
3. The date of bankruptcy is 15 October 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The second document was Mr Knight’s written submissions in his application in the Court of Appeal seeking leave to appeal from the County Court judgment. Mayart sought to tender that document to demonstrate that the argument now advanced by Mr Knight in this proceeding had been abandoned by him in the application for leave to appeal. Mr Knight objected to the tender of that document, arguing that he had not had an opportunity to consider its relevance. During the hearing, I informed the parties that I would rule on the tender after hearing argument on the application. I have concluded that the document should be admitted as evidence and it will be marked as exhibit B. It provides a basis for Mayart’s submission that the argument now advanced by Mr Knight in this proceeding had been abandoned by him in the Court of Appeal. I consider that there is no prejudice to Mr Knight from the tender of the document. While Mr Knight complained that he had not been given prior notice of the document before the hearing, the document is Mr Knight’s own written submissions to the Court of Appeal, and Mr Knight was able to respond to the document during the hearing. CONSIDERATION OF PETITIONSatisfaction of the statutory requirements Based on the evidence relied on by Mayart, I am satisfied of the matters set out in ss 43 and 52(1) of the Bankruptcy Act and other related statutory requirements. First, for the purposes of s 43(1)(a), I am satisfied that Mr Knight has committed an act of bankruptcy as described in s 40(1)(g). In that regard, I am satisfied that:(a)Mayart obtained against Mr Knight a final judgment in the County Court proceeding;(b)the Bankruptcy Notice has been served on Mr Knight;(c)Mr Knight has failed to comply with the requirements of the Bankruptcy Notice within the time fixed for compliance which, by orders made in Federal Circuit and Family Court of Australia proceeding MLG2095/2021, was extended to 15 October 2021. Second, for the purposes of s 43(1)(b), I am satisfied that at the time when the act of bankruptcy was committed, Mr Knight was personally present or ordinarily resident in Australia. Third, for the purposes of s 44(1), I am satisfied that the debt exceeds the statutory minimum, the debt is a liquidated sum due at law and the act of bankruptcy on which the petition is founded was committed within 6 months before the presentation of the petition. Fourth, for the purposes of s 47(1), I am satisfied that the creditor’s petition is verified by an affidavit of a person who knows the relevant facts, being the affidavit of Mr Noble sworn 11 April 2022. Fifth, for the purposes of s 47(1A), I am satisfied that the creditor’s petition is in the proper form. Sixth, for the purposes of s 52(1), I am satisfied that:(a)the matters stated in the creditor’s petition have been proved by the affidavits relied upon by Mayart in this proceeding;(b)the creditor’s petition has been served on Mr Knight as required by r 4.05 of the Bankruptcy Rules; and (c)subject to the matter considered below, that the debt on which the applicant relies is still owing.