McNally v Fazio (No 3)

This matter came before Judge Antoni Lucev in the Supreme Court of Western Australia concerning an application for a sequestration order against Mr Fazio, initiated by the applicant, McNally. Mr Fazio opposed the application, raising several grounds in his Notice of Opposition.

The court was required to determine whether Mr Fazio had provided sufficient proof to satisfy the requirements for the making of a sequestration order, specifically whether he had demonstrated an ability to pay his debts or established any other sufficient cause for the court to refrain from making such an order. The court also considered Mr Fazio's attempts to introduce further evidence and his assertions regarding his mental and physical health.

Judge Lucev found that Mr Fazio had failed to establish any of the grounds in his Notice of Opposition. The court noted that Mr Fazio had not issued the proposed notices to produce or subpoenas he had indicated an intention to file, and therefore, these did not constitute extant evidence. Furthermore, the affidavits of Ms Wilkinson and Mr Bowen were considered solely as affidavits of service, with no substantive bearing on the defence. Regarding Mr Fazio's health, the court found that the statements in his affidavit did not evidence an incapacity to attend a hearing, particularly in light of his prior success in having an administrator appointed to his estate revoked based on alleged incapacity. Consequently, the court concluded there was no admissible evidence of incapacity.

As Mr Fazio had failed to satisfy the court that he was able to pay his debts or that there was any other sufficient cause not to make a sequestration order, the court found that the conditions of section 52(2) of the Bankruptcy Act had not been met.