Menso v Nuplex Industries (Aust) Pty Ltd
[2012] FMCA 135
•13 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MENSO v NUPLEX INDUSTRIES (AUST) PTY LTD | [2012] FMCA 135 |
| BANKRUPTCY – Annulment – where proceedings stayed for 21 days following sequestration order – where debtor paid petitioning creditor within 21 days – where debtor did not then apply for orders to be set aside or annulment – where debtor did not appeal – where debtor agrees to withdraw allegations related to primary application – where no objection to application for annulment – whether to grant annulment. COSTS – Assessment. |
| Bankruptcy Act 1966 (Cth) s.153B Federal Magistrates Court (Bankruptcy) Rules 2006 |
| Applicant: | MARIO JOHN MENSO |
| Respondent: | NUPLEX INDUSTRIES (AUST) PTY LTD |
| File Number: | SYG 2629 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 13 February 2012 |
| Date of Last Submission: | 13 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2012 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: Solicitors for the Trustee | Access Law Group Sally Nash & Co. Lawyers |
ORDERS
The sequestration order made on 3 May 2011 be annulled pursuant to s.153B of the Bankruptcy Act 1966 (Cth).
The applicant pay the petitioning creditor’s costs assessed in the sum of $750.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2629 of 2011
| MARIO JOHN MENSO |
Applicant
And
| NUPLEX INDUSTRIES (AUST) PTY LTD |
Respondent
REASONS FOR JUDGMENT
This matter commenced with an application dated 17 November 2011 where orders were sought setting aside Orders 1 and 3 made by Smith FM on 3 May 2011 and for the annulment of the bankruptcy under s. 153B of the Bankruptcy Act1966 (Cth)[1]. The matter came before me on 20 December 2011 at which time it was adjourned until today.
[1] The “Act”.
Shortly put, the facts are that when a sequestration order was made by Smith FM proceedings under the order were stayed for a period of 21 days. During that time the debtor made payment in full of the amount owed to the petitioning creditor. It would then have been open to him to make an application to Smith FM to set aside the sequestration order or to annul it pursuant to s. 153B, but that was not done. To the extent that the debtor was dissatisfied with the orders that were made by Smith FM he could, of course, have appealed them but he did not do that either.
Instead, he brought the proceedings with which I am today dealing. When the matter did come before me on 20 December 2011 I made orders that required Mr Menso to comply with the provisions of the Federal Magistrates Court (Bankruptcy) Rules 2006 relating to the notification of his creditors and asked the trustee to prepare a report.
I am satisfied that Mr Menso has notified his creditors and I note that none of them have appeared here today.
The trustee did provide a report of sorts. Unfortunately, it depended rather heavily on an exhibit which has never reached the court, as a result of which concern was expressed by me. In the event Ms Nash helpfully intervened and acted on behalf of the trustee from whom she had obtained certain instructions. Mr Mitchell for the petitioning creditor also appeared. He did so because his client is concerned about some matters raised by Mr Menso concerning the validity of the original bankruptcy notices and the proceedings.
Mr Menso has now agreed that any allegations related to those matters are withdrawn, which I believe is appropriate considering that he did not appeal against the original orders. The petitioning creditor has no objection to the application being made and, so far as I understand, that is the position of the trustee. Although the trustee says that he has not received a statement of affairs from Mr Menso, he has obtained information from him about them. Whilst it should not be said that the trustee supports the application he does not oppose it.
Mr Menso, who is a sole trader, has had a difficult few months since the making of the sequestration order. He has come to this court from North Queensland on these two occasions. The letters which he has produced from his creditors would seem to indicate that he is complying with the arrangements made with them. The only concern is the filing of tax returns and quarterly BAS statements in respect of which information was provided to the trustee and by the trustee to Ms Nash. However, the ATO has not appeared.
In all the circumstances, I believe it is appropriate to make the annulment order sought by Mr Menso. He understands that as a result he will have to pay the costs of the trustee for his involvement.
In regard to the costs of the application I would not make any order against Mr Menso in respect of the costs of the trustee because had the trustee provided the court with the information that it requested and ensured that it came to the notice of the court it would probably not have been necessary to have the intervention, helpful as it was, by Ms Nash.
The situation is rather different with Mr Mitchell. He was entitled to come on the first occasion. I offered to excuse him on the second.
I think that Mr Menso should pay some costs for Mr Mitchell’s appearance. Those costs I would assess in the sum of $750.00.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 28 February 2012
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