Nesci v Cuomo
[2008] FMCA 816
•10 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NESCI v CUOMO | [2008] FMCA 816 |
| BANKRUPTCY – Application to adjourn petition – where no supporting evidence filed. |
| Bankruptcy Act 1966, s.52 Federal Magistrates Court (Bankruptcy) Rules 2006 Bankruptcy Regulations 1996 |
| Applicant: | BRUNO NESCI T/AS NESCIS LAWYERS |
| Respondent: | GINO CUOMO |
| File Number: | SYG 3575 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 10 June 2008 |
| Date of Last Submission: | 10 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 10 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr E Muston |
| For the Respondent: | In person |
ORDERS
A sequestration order be made against the estate of Gino Cuomo.
The applicant creditor’s costs (including reserved costs of substituted service) be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.
THE COURT NOTES:
The date of the act of bankruptcy is 15 November 2007.
A Consent to Act as Trustee has been signed by Robert Whitton and has been lodged with the Official Receiver in Sydney.
A copy of this Order to be provided to the Official Receiver in Sydney in 2 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3575 of 2007
| BRUNO NESCI T/AS NESCIS LAWYERS |
Applicant
And
| GINO CUOMO |
Respondent
REASONS FOR JUDGMENT
This matter was set down for hearing before me this morning at 9.45a.m. by order of Registrar Hedge on 27 May 2008. The debtor was not present at 9.45a.m. The matter was stood down in the list while another matter was mentioned.
I commenced hearing it at 9.55a.m. At approximately 10.00a.m. Mr Cuomo appeared. He sought an adjournment of the matter. He told me that he was solvent. He told me that he needed time to establish his solvency. He provided me with no evidence of his solvency, such as an indication of the status of his bank account, an indication of whether or not he owned property and the amount of equity that he might hold in it. He told me that his solvency came from the estate of his late mother in Italy and funds which other people owed him. He did not tell me who owed him the money or how much money was owed. He did not tell me how much money was available in Italy. He did not tell me how long it would take to obtain those funds. He asked for time to seek legal advice and to prepare his case.
The absence of any evidence by Mr Cuomo this morning would to my mind have been sufficient in itself to decline to grant him the adjournment he sought. But his situation has been compounded by the fact that the matter first came before the court on 15 May 2008 when it was heard by Registrar Segal. Mr Muston, who appears for the applicant creditor, informed me Mr Cuomo, on that date, made a similar request for time as made before me today. Registrar Segal made orders that any notice of opposition and affidavits in support be filed and served by 23 May 2008. The matter was adjourned to 27 May. No affidavits were filed on behalf of the debtor.
The matter then came before Registrar Hedge on 27 May. Once again Mr Cuomo appeared and once again he asked for further time. Registrar Hedge granted him a further adjournment until today requiring any notice of opposition and affidavits in support to be filed and served by 6 June 2008.
Mr Cuomo was present on both occasions. He says that no orders were provided to him but he was clearly aware that the orders were made by the Registrar, notwithstanding his denial of that fact. On 27 May Mr Cuomo filed an application in this court asking for a further three months to gather evidence and obtain legal representation. He has not filed any affidavit in support.
In view of the opportunities that Mr Cuomo has had to provide this court with assistance regarding his solvency, and the fact that he has not done so, the views which I earlier had expressed that no adjournment should be granted have been confirmed, I intend to proceed with the hearing of the bankruptcy petition. Of course, if Mr Cuomo really is solvent and he is able to pay any current debts, including this one, he can obtain an annulment of his bankruptcy pursuant to the Bankruptcy Act1966 (the “Act”).
I am satisfied that the debtor committed the act of bankruptcy alleged in the petition. I am satisfied with the proof of the other matters required by s.52 of the Act. I make a sequestration order against the estate of Gino Cuomo. I order that the applicant creditor's costs, including any reserved costs, be taxed in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006 and paid from the estate of the respondent debtor in accordance with the Act. Under the Bankruptcy Regulations 1996 a copy of the sequestration order be given to the Official Receiver in Sydney within two days. The court notes the date of the act of bankruptcy is 15 November 2007.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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