Moore v Wilson

[2005] FMCA 870

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOORE v WILSON & ANOR [2005] FMCA 870

BANKRUPTCY – Sequestration order made by Registrar – review application – evidence of solvency – ‘other sufficient cause’.

Federal Magistrates Act 1999, ss.1-3. 104(2)
Commonwealth Evidence Act 1995, s.131
Federal Magistrates Court Rules 2001, rr.20.00A(1)(c), 20.01, 20.03(A)
Bankruptcy Act 1966 (Cth), ss.52, 52(1), s.51(2)(a), 52(1)(b), 52(2)(b)

St George Bank Ltd v Helfenbaum [1999] FCA 1337
Re: Sarina; Ex-parte Wollondilly Shire Council (1980) 32 ALR 596
Ling v Enrobook Pty Ltd (1997) 74 FCR 19

Applicant: DAVID GERALD MOORE

First Respondent WAYNE STEPHEN WILSON

Second Respondent: GAYLE LAWTON

File Number: ADG 207 of 2004

Judgment of: Lindsay FM

Hearing dates: 8 & 22 April and 13 May 2005

Date of Last Submission: 13 May 2005

Delivered at: Adelaide

Delivered on: 1 July 2005

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Mr Abbott QC

Solicitors for the Respondents: Iles Selley Lawyers

ORDERS

1. That the Application for Review filed on the 1 February 2005 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 207 of 2004

DAVID GERALD MOORE

Applicant

And

WAYNE STEPHEN WILSON

First Respondent

GAYLE LAWTON

Second Respondent

REASONS FOR JUDGMENT

1. On 21 January 2005 Registrar Christie sitting in the Federal Magistrates Court in Adelaide made a sequestration order in relation to the estate of the applicant.

2. Registrar Christie was exercising powers delegated to her by s.103 of the Federal Magistrates Act 1999 (the “Act”) and r.20.00A(1)(c) of the Federal Magistrates Court Rules 2001.

3. Involving the exercise of a delegated power, then, Registrar Christie’s orders were capable of being the subject of a review pursuant to s.104(2) of the Act.

4. The applicant filed his Application for Review on 1 February 2005, within the time prescribed for the review by r.20.01 of the Rules of this Court.

5. The review document itself is unclear as to the nature of the orders sought upon review, but it was agreed at the outset that the application would be treated as one to set aside the sequestration order.

6. The review proceeds by way of a hearing de novo, as it must do being in relation to the exercise of delegated Commonwealth Judicial Power (see r.20.03(a)).  At the hearing of review the applicant relied upon his affidavit filed on 11 March 2005 and one filed on 30 March 2005.  The respondent relied upon an affidavit of Megan Eliza Prideaux filed on 5 April 2005 and a further affidavit of that person filed on 1 March and upon an affidavit of Ms Denise Langford filed on 17 January 2005. Both of those affidavits contained numerous exhibits.

7. Section 52 of the Bankruptcy Act 1966 (Cth) provides as follows:

   (1)At the hearing of a creditor’s petition, the Court shall require proof of:

   (a)the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);

   (b)service of the petition; and

   (c)the fact that the debt or debts on which the petitioning…