National Australia Bank Ltd v CLARK

[2015] FCCA 3093

FEDERAL CIRCUIT COURT OF AUSTRALIA

NATIONAL AUSTRALIA BANK LTD v CLARK & ANOR [2015] FCCA 3093

Catchwords:
BANKRUPTCY – Sequestration order – no appearance by the respondents – act of bankruptcy committed – sequestration order made.

Legislation:

Bankruptcy Act 1966, ss.27, 43

Federal Circuit Court (Bankruptcy) Rules 2006, rr.4.05, 4.06

Applicant: NATIONAL AUSTRALIA BANK LTD

First Respondent: DAVID CLARK

Second Respondent: RENAE CLARK

File Number: SYG 2846 of 2014

Judgment of: Judge Street

Hearing date: 19 November 2015

Date of Last Submission: 19 November 2015

Delivered at: Sydney

Delivered on: 19 November 2015

REPRESENTATION

Solicitors for the Applicant: Mr B Koch
Turkslegal

No appearance by or on behalf of the Respondents

ORDERS

1. A sequestration order is made against the estate of DAVID CLARK.

2. A sequestration order is made against the estate of RENAE LOUISE CLARK.

3. The applicant creditor’s costs fixed in the amount of $16,156 are to be paid from the estates of the respondents.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2846 of 2014

NATIONAL AUSTRALIA BANK LTD

Applicant

And

DAVID CLARK

First Respondent

RENAE CLARK

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.27 of the Bankruptcy Act 1966 (Cth). On 12 October 2015 a Registrar of the Court made directions relevantly requiring the respondents to file an amended notice of opposition and supporting affidavits by 5 November 2015 and listing the notice of opposition for directions before the Court today. The matter has been called outside the Court, and the respondents have not appeared. No documents were filed by the respondents in accordance with the direction made on 12 October 2015.

2. This is a matter in respect of which the creditor’s petition was filed on 14 October 2014. The applicant has moved for a sequestration order under s.43. Based on the affidavits that have been read in Court, I am satisfied as to the service of the bankruptcy notice and that an act of bankruptcy occurred on 12 September 2014. Affidavits of verification of the creditor’s petition have been read as well as affidavits of service of the creditor’s petition, a current affidavit of debt and an affidavit of search. I am satisfied that both respondents committed an act of bankruptcy on 12 September 2014. I am satisfied that the requirements of s.43(1)(b) are made out. I am satisfied that the requirements in relation to the creditor’s petition under Part IV of the Federal Circuit Court (Bankruptcy) Rules 2006 have been satisfied.  I am satisfied that the requirements of r.4.05 of the Federal Circuit Court (Bankruptcy) Rules 2006 have been met as well as the requirements of r.4.06. 

3. I am satisfied that the respondents were well aware of the hearing date, and I note that the respondents had attended at the time that the orders were made by the Registrar on 12 October 2015. I note that there were proceedings that were taken in the Supreme Court of New South Wales seeking a stay of the judgment in that Court and that that application was dismissed by Button J on 3 August 2015. I am not satisfied that the respective applicants are able to pay their debts. I am not satisfied that there is any other sufficient cause not to make a sequestration order. I am satisfied this is an appropriate case to exercise the Court’s jurisdiction under s.43 in the Bankruptcy Act 1966. 

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  24 November 2015