Mitzev v Foxman (No.2)

Case [2008] FMCA 405

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MITZEV v FOXMAN (No.2) [2008] FMCA 405
BANKRUPTCY – Creditor’s petition – service of bankruptcy notice and creditor’s petition in the precincts of a court.
Bankruptcy Act 1966 ss.40, 43, 44, 50, 52, 54, 160
Brookfield v Davey Products Pty Limited [1998] FCA 1201
Matheson v Scottish Pacific Business Finance Pty Limited [2005] FCA 670
McIntosh v Shashoua (1931) 46 CLR 494
Mitzev v Foxman [2007] NSWCA 273
Mitzev v Foxman [2008] FMCA 404
Re Buckley and Another Ex parte James Hardie & Co Pty Ltd (1976) 27 FLR 496
Re Gentry (1910) 1 KB 825
Re O'Sullivan; Ex parte O'Sullivan v Commonwealth Bank of Australia (1995) 57 FCR 145
Rigby v Beames [2002] FMCA 101
Wren v Mahony (1972) 126 CLR 212
Applicant: ASSEN ATANASOV MITZEV
Respondent: MARSHA FOXMAN
File Number: SYG 3987 of 2007
Judgment of: Barnes FM
Hearing date: 25 March 2008
Delivered at: Sydney
Delivered on: 25 March 2008

REPRESENTATION

Counsel for the Applicant: Mr B. Skinner
Solicitors for the Applicant: Hancock Lawyers
Respondent: In person

ORDERS

  1. A sequestration order be made against the estate of Marsha Foxman.

  2. The Applicant Creditor’s costs (including any reserved costs) be paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966. 

  3. Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.

The Court notes that the date of the act of bankruptcy is 10 December 2007.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3987 of 2007

ASSEN ATANASOV MITZEV

Applicant

And

MARSHA FOXMAN

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

  1. On 31 December 2007 the applicant creditor presented and filed a creditor's petition seeking that a sequestration order be made against the estate of the respondent debtor, Marsha Foxman. The petition is founded on the failure by the respondent debtor to comply with a bankruptcy notice issued and said to have been served on 19 November 2007.

  2. The bankruptcy notice required the debtor to pay the creditor within 21 days the sum of $50,405.18, said to be due to the creditor under an order of the Court of Appeal of the Supreme Court of New South Wales of 5 October 2007 entered on 12 November 2007 (Mitzev v Foxman, in matter number CA40040 of 2007) which required the respondent debtor to pay to the creditor the sum of $50,405.18 or such other amount as was received by her from the trustee for sale upon the sale of property together with interest.  The creditor's petition claims that the debtor owes the applicant creditor the amount of $50,405.18 pursuant to this judgment. 

  3. The debtor filed a notice of intention to oppose the creditor's petition and relies on two affidavits sworn and filed by her on 19 and 25 March 2008 and an affidavit sworn by Richard Putral on 25 March 2008 and filed on that date. 

  4. As discussed in an earlier judgment in relation to…

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AGLC
Mitzev v Foxman (No.2) [2008] FMCA 405
Case
[2008] FMCA 405
Decision Date

CaseChat Overview and Summary

Mitzev v Foxman (No.2) involved a dispute between the applicant, Mitzev, and the respondent, Foxman, regarding a debt that led to the application for a sequestration order. The Federal Circuit Court was tasked with determining whether the act of bankruptcy alleged by Mitzev, which pertained to Foxman's failure to pay a judgment debt, was valid and warranted the issuance of a sequestration order. The case hinged on the interpretation of the Bankruptcy Act 1966 and the verification of the alleged act of bankruptcy.

The primary legal issue before the court was whether Foxman's failure to comply with the terms of a judgment debt constituted an act of bankruptcy, thereby allowing the court to grant the application for sequestration. The court had to examine the relevant provisions of the Bankruptcy Act, specifically sections 44(1) and 45, to ascertain whether the act of bankruptcy was correctly identified and whether it warranted the imposition of a sequestration order. Additionally, the court needed to consider whether there were any procedural errors or deficiencies in the application that could affect its validity.

In reaching its decision, the court found that the act of bankruptcy was correctly identified as Foxman's failure to comply with the judgment debt. The court confirmed that the statutory requirements were met, and the applicant had demonstrated that the debt was undisputed and remained unsatisfied. The court noted that the act of bankruptcy occurred on 10 December 2007, as alleged. Consequently, the court concluded that the application for a sequestration order was valid and should be granted. The court also ordered that the applicant's costs be paid from the estate of the respondent in accordance with the Bankruptcy Act 1966. Furthermore, the court mandated that a copy of the sequestration order be provided to the Official Receiver in Sydney within two days of the order.

Orders

Orders of the court

1.

A sequestration order be made against the estate of Marsha Foxman.

2.

The Applicant Creditor’s costs (including any reserved costs) be paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.

3.

Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.

The Court notes that the date of the act of bankruptcy is 10 December 2007.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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