Mosman Municipal Council v Kelly
[2011] FCA 1166
•11 October 2011
FEDERAL COURT OF AUSTRALIA
Mosman Municipal Council v Kelly [2011] FCA 1166
Citation: Mosman Municipal Council v Kelly [2011] FCA 1166 Parties: MOSMAN MUNICIPAL COUNCIL v DAVID KELLY File number: NSD 123 of 2011 Judge: BUCHANAN J Date of judgment: 11 October 2011 Catchwords: BANKRUPTCY – application for review of sequestration order made by District Registrar – application dismissed Legislation: Bankruptcy Act 1966 (Cth) Cases cited: Totev v Sfar (2008) 167 FCR 193 Date of hearing: 11 October 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 12 Counsel for the Applicant: Ms J Gleeson Solicitor for the Applicant: Pike Lawyers Counsel for the Respondent: The Respondent appeared in person Counsel for the Respondent: Ms L Williams, appeared on behalf of the Respondent Solicitor for the Respondent: Darroll Nelson & Co
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 123 of 2011
BETWEEN: MOSMAN MUNICIPAL COUNCIL
ApplicantAND: DAVID KELLY
Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
11 OCTOBER 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The interlocutory application filed on 3 August 2011 for review of the decision and sequestration order of the District Registrar made on 13 July 2011 is dismissed with costs.
2.Costs are to be paid from Mr Kelly’s estate in accordance with the Bankruptcy Act 1966 (Cth).
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 123 of 2011
BETWEEN: MOSMAN MUNICIPAL COUNCIL
ApplicantAND: DAVID KELLY
Respondent
JUDGE:
BUCHANAN J
DATE:
11 OCTOBER 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 19 October 2010 bankruptcy notice number 4643 was issued at the instance of the applicant against the respondent, David Kelly. The bankruptcy notice was for a total debt of $16,581.32, being an amount of $15,687.25 due under a final judgment obtained in the Local Court Downing Centre entered on 23 February 2010, together with interest thereon until 22 September 2010. An affidavit of service sworn on 14 December 2010 by Michael Wolfowicz, deposed to personal service on Mr Kelly on Monday, 13 December 2010 at 11.19 am in St James Road, Sydney. The debt alleged in the bankruptcy notice was not paid. No application was made to set aside the bankruptcy notice.
A creditor’s petition was filed on 11 February 2011. There were difficulties achieving personal service of Mr Kelly. Those difficulties are dealt with in an affidavit of Andrew Simpson sworn 7 June 2011 which was filed on 8 June 2011. Mr Simpson is a solicitor employed at Pikes Lawyers and had day to day carriage of the present proceedings for the applicant. On 8 June 2011, Registrar Hedge made an order for substituted service of the creditor’s petition. Those orders required copies of relevant documents to be left on the front veranda of Mr Kelly’s premises at 91 Ourimbah Road, Mosman, New South Wales 2088 and affixed to a rear roller garage door, as well as being sent by pre paid ordinary post addressed to Mr Kelly at that address and to Post Office Box 632, Spit Junction, New South Wales 2088. On 13 July 2011, there was filed in the proceedings an affidavit by Mr Simpson sworn on 16 June 2011 providing evidence of service in accordance with the orders made on 8 June 2011.
On 12 July 2011, an affidavit of final debt and an affidavit of final search were each filed in the proceedings. Further affidavits of final debt and of final search were filed on 10 October 2011 for the purpose of the present interlocutory application. The affidavit of final debt was sworn by Maxwell Norman Glyde and the affidavit of final search was sworn by Mr Simpson.
On 13 July 2011, District Registrar Wall made a sequestration order against Mr Kelly’s estate and fixed the creditor’s costs in the amount of $3,529.45 to be paid from Mr Kelly’s estate.
On 3 August 2011, Mr Kelly caused to be filed the interlocutory application with which the present proceedings are concerned. That interlocutory application seeks a review of the “decision” of District Register Wall. The interlocutory application was supported by an affidavit sworn by Mr Kelly on 3 August 2011.
Although Mr Kelly asserted in his affidavit that he did not receive notification of the hearing date of the creditor’s petition, the affidavit gave as his address the address at which service of the creditor’s petition was effected.
Mr Kelly’s affidavit stated that he has other proceedings concerning himself and the applicant before the District Court and in the New South Wales Court of Appeal and suggested he has been “denied natural justice and due process as a result of the decision of District Registrar Wall”, and that he has a “good defence to this matter”. Those suggestions or suggestions to a broadly similar effect were also made during the proceedings this morning, both by Mr Kelly and by Ms Lydia Williams, who I permitted to speak on his behalf.
Attached to the affidavit filed on 3 August 2011 was a medical certificate certifying that Mr Kelly has non insulin dependent diabetes, has had a coronary artery bypass, has coronary artery disease and has had his aortic valve either repaired or replaced, but has no need for Warfarin. It is not clear what significance those physical circumstances were intended to have for the present proceedings. They do not appear to me to bear on any issue which arises for my consideration. When the proceedings commenced this morning, a further medical certificate was provided for Mr Kelly dated 10 October 2011. It was provided to him by Dr Merey of the Warringah Mall Medical Centre. That certificate referred to Mr Kelly having “multiple chronic medical conditions” and to him recovering from aortic valve replacement surgery in August 2009. It suggested that he has been suffering from “forgetfulness and mild confusion”. Again, it seems to me that the contents of this certificate do not bear on the matters which arise for decision in relation to the interlocutory application.
The latest medical certificate was also relied upon to support an application of an adjournment of the proceedings. That application was thought by Mr Kelly and Ms Williams to be necessary because the solicitor who Mr Kelly had engaged for the purpose of the present application had not attended to represent him this morning or arranged other representation. After hearing what Mr Kelly and Ms Williams wished to say in support of the application for an adjournment, I refused to grant it. I did so because nothing which they said appeared to me to be likely to lead to any further contribution being made to the issues which arise for consideration in relation to whether a sequestration order should have been made.
Before me, various allegations were made in the most general of terms to the effect that the applicant for the creditor’s petition had in some way abused its position or taken advantage of Mr Kelly. None of those matters seemed to me to raise any serious question about the judgment upon which the bankruptcy notice was based, or about any question of service of either the bankruptcy notice or the creditor’s petition.
I have no doubt that the sequestration order was regularly made. No competent challenge has been made to the creditor’s petition, nor to the bankruptcy notice on which it was founded. Service was regularly effected of each. There is no reason to doubt the correctness of the sequestration order made on 13 July 2011. I am also affirmatively satisfied that the requirements for the making of a sequestration order in accordance with the Bankruptcy Act 1966 (Cth) are satisfied in this case (see Totev v Sfar (2008) 167 FCR 193).
The present interlocutory application must be dismissed with costs. The costs are to be paid from Mr Kelly’s estate in accordance with the Bankruptcy Act 1966 (Cth).
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 12 October 2011
31
2
1