Miller v Ghosh (No 3)

Case [2016] FCCA 2491

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLER v GHOSH (No.3) [2016] FCCA 2491
Catchwords:
BANKRUPTCY – Application for sequestration order made by substituted creditor – whether debt owed to substituted creditor as at the date of act of bankruptcy – whether grounds for sequestration order established – whether there is any sufficient cause for not making a sequestration order – sequestration order made.

Legislation:

Bankruptcy Act 1966 (Cth), ss.39(2)(b), 40(1)(g), 44(1), 47, 49, 60
Federal Circuit Court (Bankruptcy) Rules 2016 (Cth), rr.4.04(1)(a), 4.05, 4.06, 4.06(3)
Uniform Civil Procedure Rules 2005 (NSW), rr.42.7, 42.7(2)

Cases cited:

2000 Olympic Games Pty Ltd v Daly [2000] FCA 1286
Baycorp Collections PDL (Australia) Pty Ltd v Ghosh [2016] FCCA 131
Hyams v Elder Smith Goldsbrough Mort Ltd [1976] HCA 18; (1976) 133 CLR 637
McNamara v Langford [1931] HCA 27; (1931) 45 CLR 267
Miller v Ghosh [2016] FCCA 1191
Miller v Ghosh (No. 2) [2016] FCCA 1192
Re Buckley; Ex parte James Hardie & Co Pty Ltd (1976) 27 FLR 496
Applicant: RODNEY MILLER
Respondent: RATNA GHOSH
File Number: SYG 235 of 2015
Judgment of: Judge Manousaridis
Hearing date: 20 July 2016
Delivered at: Sydney
Delivered on: 30 September 2016

REPRESENTATION

Counsel for the Applicant: Mr M W E Maconachie
Solicitors for the Applicant: Higgins & Dix
Solicitors for the Supporting Creditor:

Mr T Sutherland of Mark O’Brien Legal

The respondent appeared in person

ORDERS

  1. The estate of Dr Ratna Ghosh is sequestrated under the Bankruptcy Act 1966 (Cth).

  2. The applicant creditor’s costs be paid from the estate of Dr Ratna Ghosh in accordance with the Bankruptcy Act 1966 (Cth).

  3. Mr Scott Anthony Newton be appointed trustee of the estate of Dr Ratna Ghosh.

  4. The official trustee be notified of these orders within 2 business days.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 235 of 2015

RODNEY MILLER

Applicant

And

RATNA GHOSH

Respondent

REASONS FOR JUDGMENT

Introduction

  1. On 11 May 2016, pursuant to s.49 of the Bankruptcy Act 1966 (Cth) (Act), I made an order substituting Mr Rodney Miller for Baycorp Collections PDL (Australia) Pty Limited (Baycorp) as the petitioning creditor, and ordered that the petition may be proceeded with as if Mr Miller has been the petitioning creditor. I also made a sequestration order against the estate of Dr Ratna Ghosh.[1] I made the sequestration order on the basis of an amended creditor’s petition in which Mr Miller claimed Dr Ghosh owed him $7,000. That represents the amount of a judgment Mr Miller recovered against Dr Ghosh in the District Court of New South Wales on 17 September 2014.

  2. On 17 May 2016 I set aside the sequestration order.[2] I did so because I made the sequestration order in the absence of Dr Ghosh, and without addressing what I found to be an arguable ground of opposition to the making of the sequestration order. The arguable ground I identified is that Dr Ghosh was the undisputed beneficiary of a…

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Details
AGLC
Miller v Ghosh (No.3) [2016] FCCA 2491
Case
[2016] FCCA 2491
Decision Date

CaseChat Overview and Summary

In this matter before Judge Manousaridis, Mr Miller sought to establish three Local Court judgments against Dr Ghosh. The dispute centred on the proof of these judgments and whether Dr Ghosh remained indebted to Mr Miller. Mr Miller's solicitor, Mr Maher, initially sought to prove the judgments via an affidavit dated 11 May 2016, which annexed registration of certificate of judgment or order acknowledgements. Dr Ghosh objected to this affidavit on grounds of non-service.

The court was required to determine the admissibility and evidentiary weight of the documents presented to prove the Local Court judgments. Specifically, the court needed to ascertain whether the provided certificates of judgment were sufficient evidence to establish Mr Miller as the judgment creditor and that Dr Ghosh remained indebted. Furthermore, the court had to consider the validity of a prior finding that Dr Ghosh had committed an act of bankruptcy by failing to comply with a bankruptcy notice issued on 28 October 2014, which demanded payment of $11,265.01.

Judge Manousaridis admitted the certificates of judgment as exhibit 2, finding them to be what they purported to be, despite being unsealed, unsigned, and lacking interest calculations. The court was satisfied that these documents evidenced Mr Miller as the judgment creditor for the three Local Court judgments entered on 6 August 2014, and that Dr Ghosh remained indebted. The court also confirmed its previous finding that Dr Ghosh had committed an act of bankruptcy on 18 November 2014, due to non-compliance with the bankruptcy notice served by email and post on 28 October 2014. This finding was based on affidavits previously read at a hearing where Dr Ghosh did not appear, and the court determined that setting aside a prior sequestration order did not render those affidavits unread.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Miller sought to prove the three Local Court judgments by an affidavit made by Mr Miller’s solicitor, Mr Maher, on 11 May 2016.[14] That affidavit annexed, among other things, a registration of certificate of judgment or order acknowledgement for each of the three judgments.[15] There was no evidence that the affidavit has been served on Dr Ghosh, and, during the hearing, Dr Ghosh objected to my reading that affidavit for that reason. During the course of the hearing, however, my associate, at my request, accessed the “NSW Online Registry Portal” and downloaded and printed the registration of certificate of judgment or order acknowledgement in relation to each of the three judgments. These documents were marked as exhibit 2 (Certificates of Judgment). [14] Affidavit of A P Maher, 11.05.2016[15] Affidavit of A P Maher, 11.05.2016; Annexure C; Annexure E; Annexure G Dr Ghosh accepted the Certificates of Judgment were what they purported to be, namely, three registrations of certificates of judgment or order acknowledgements. She submitted, however, that they were unsealed, and unsigned, and they do not contain a schedule of interest calculations. None of these matters, however, lead me to doubt that the documents comprising exhibit 2 are what they purport to be. For that reason, I am satisfied Mr Miller is the judgment creditor of the three judgments in the Local Court entered on 6 August 2014 evidenced by the Certificates of Judgment, and that debts for the amounts of those judgments arose at the time they were entered. I also find that Dr Ghosh remains indebted to Mr Miller in relation to those judgments, and the judgment for $7,000.[16] I will consider later in these reasons, however, whether, those judgments are currently payable.[16] Affidavit of debt of R J Miller, 19.07.2016 The act of bankruptcy on which Baycorp relied was Dr Ghosh’s failure to comply with a bankruptcy notice. The relevant bankruptcy notice is that issued on 28 October 2014. The bankruptcy notice demanded payment of $11,265.01. On 11 May 2016 I found that the bankruptcy notice was served on Dr Ghosh by email and by post on 28 October 2014. I also found Dr Ghosh did not comply with the bankruptcy notice within 21 days of service, that Dr Ghosh, therefore, committed an act of bankruptcy within the meaning of s.40(1)(g) of the Act, and the act of bankruptcy occurred on 18 November 2014.[17][17] Miller v Ghosh [2016] FCCA 1191 at [18] I made these findings on the basis of affidavits that were read at the hearing of 11 May 2016 at which Dr Ghosh did not appear.[18] In response to my inviting counsel for Mr Miller to again read the affidavits that had been read at the hearing of 11 May 2016, counsel submitted it was unnecessary to do so because the affidavits had already been read; Dr Ghosh had the opportunity to object to my reading the affidavits had she appeared at that hearing; and my setting aside on 17 May 2016 the sequestration order I made on 11 May 2016 did not have the effect of rendering the affidavits I had read as unread.[18] The same affidavits had been read at the hearing of 17 December 2015 – see Baycorp Collections PDL (Australia) Pty Ltd v Ghosh [2016] FCCA 131

Ratio Decidendi

Legal Principle Established

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