Michael v Ogun
[2009] FMCA 332
•7 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MICHAEL & ANOR v OGUN | [2009] FMCA 332 |
| BANKRUPTCY – Creditor’s Petition – where application for adjournment refused. |
| Bankruptcy Act 1966, s.52 |
| Applicants: | CHRISTOPHER DOUGLAS MICHAEL & KATHLEEN MICHAEL |
| Respondent: | SINAN OGUN |
| File Number: | SYG 245 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 7 April 2009 |
| Date of Last Submission: | 7 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 7 April 2009 |
REPRESENTATION
| Solicitors for the Applicants: | Ziman & Ziman |
| Solicitors for the Respondent: | Prichard Lawyers |
| Solicitors for the Supporting Creditor: | Swaab Attorneys |
ORDERS
A sequestration order be made against the Estate of the Debtor, Sinan Ogun.
The applicant creditors’ costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.
THE COURT NOTES:
Date of Commission of Act of Bankruptcy: 7 January 2009.
A Consent to Act as Trustee has been signed by Andrew Hugh Jenner Wily of Armstrong Wily and has been lodged with the Official Receiver in Sydney.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 245 of 2009
| CHRISTOPHER DOUGLAS MICHAEL & KATHLEEN MICHAEL |
Applicants
And
| SINAN OGUN |
Respondent
REASONS FOR JUDGMENT
This matter came first before Registrar Tesoriero on 20 March 2009 when it was adjourned to 3 April 2009, with an order that any request for further adjournment be supported by an affidavit setting out the grounds and facts and circumstances to be relied on, to be filed and served by 2 April 2009. It appears from the notices of the Registrar that at that time the debtor told the court that he was awaiting funds from overseas and he hoped the payment would be made within two weeks.
On 3 April 2009 the matter was again adjourned, the Registrar noting that the debtor had not filed an affidavit in support of the further adjournment he then sought. It was stood over until today. The debtor now comes before the court seeking a further adjournment. There is no affidavit provided but his solicitor tells me from the bar table that the applicant was hoping to repay the debt contained in the petition from the proceeds of a cattle sale which was being conducted by private treaty. He told me that the cattle sale had not been completed but that his client intended to place the cattle at auction after Easter and expected to receive about $20,000.00 from the sale.
There is a supporting creditor represented by Mr Sperber. He tells me that his client has two orders for costs against the debtor, one he accepts is not yet payable, the other is payable but he has only just had it assessed and he does not know the amount that is due.
Ms Housego who appears for the applicant creditor, tells me that the District Court has just handed down an additional judgment in her client’s favour against the debtor in the sum of approximately $50,000.00 plus costs. She tells me that she has done searches on the real property owned by the debtor and has found that there are two mortgages and a writ upon it. She believes that the property is being sold by a mortgagee. I know that no Grounds of Opposition to the petition has been filed and that notwithstanding the orders of the Registrar there is no affidavit evidence from the debtor. I also take in to account the fact that the monies allegedly to be used to repay the petitioning creditor’s debt has been differently sourced in the hearings before this court.
In my view, the debtor has not provided me with sufficient information that would allow me to give him a further adjournment. I believe that this matter should now move to completion.
I am satisfied that the respondent committed the act of bankruptcy alleged in the petition. I am satisfied with the proof of the other matters required by s.52 of the Bankruptcy Act 1966 (the “Act”). I make a sequestration order against the estate of Sinan Ogun and I order that the applicant’s costs including reserved costs if any, be taxed and paid within the estate of the respondent in accordance with the Act.
Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within two days. The court notes the date of the actual bankruptcy is 7 January 2009. I note that the Consent to Act as Trustee has been signed by Andrew Hugh Jenner and has been lodged with the Official Receiver in Sydney.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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