Nicodemus v Ductmaster Pty Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NICODEMUS v DUCTMASTER PTY LTD [2006] FMCA 1669

BANKRUPTCY – Application to set aside bankruptcy notice − where judgment debt in favour of the respondent − where applicant unaware of the proceedings and the debt − where composition or arrangement accepted by the creditors which did not include the respondent − where bankruptcy thereafter annulled − where respondent obtained Bankruptcy Notice based upon judgment in the Local Court pre original bankruptcy − whether compromise bound respondent.

Bankruptcy Act 1966, Part IV, ss.64Z, 73, 74(5), 74(6), 75, 76B, 140, 153A, 153B, 222, 222D, 224, 224A
Federal Magistrates Court (Bankruptcy) Rules 2006

Union Club v Lord Andrew Charles Battenberg [2006] NSWCA 72

Applicant: RICO NICODEMUS

Respondent: DUCTMASTER PTY LTD

File Number: SYG 1984 of 2006

Judgment of: Raphael FM

Hearing date: 24 October 2006

Date of Last Submission: 24 October 2006

Delivered at: Sydney

Delivered on: 15 November 2006

REPRESENTATION

Counsel for the Applicant: Mr G McDonald

Solicitors for the Respondent: Insight Litigation

ORDERS

1. Bankruptcy Notice NN741/06 set aside.

2. Respondent to pay the applicant’s costs to be taxed, if not agreed, in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1984 of 2006

RICO NICODEMUS

Applicant

And

DUCTMASTER PTY LTD

Respondent

REASONS FOR JUDGMENT

1. Rico Nicodemus is an air-conditioning engineer. He was born in the Philippines. English is not his first language. Between 1998 and 2002 Mr Nicodemus was in partnership with a company known as Scottish Dravo Refrigeration and Air-Conditioning Pty Ltd (“Scottish Dravo”) in an air-conditioning business which traded as Top Deal Enterprise, which itself traded as Seven Star Air-Conditioning, according to evidence given by Mr Nicodemus to this court. For approximately one year between May 2001 and May 2002 Mr Nicodemus was a director and secretary of Scottish Dravo. Mr Nicodemus guaranteed the obligations of Scottish Dravo to a number of suppliers including the respondent to these proceedings. He told the court that he left Seven Star on 28 May 2002, by which I understand that he unofficially dissolved the partnership at that time. Scottish Dravo later went into liquidation. Meanwhile, in September 2002, the respondent Ductmaster brought proceedings by way of a statement of liquidated claim in the Local Court of NSW against Scottish Dravo and Mr Nicodemus.  

   
   

   The address given for Mr Nicodemus was in Marlowe Street, Campsie. The amount of the claim was $10,950.16. On 7 November 2002, Ductmaster obtained judgment against Mr Nicodemus in the sum of $11,336.37. Mr Nicodemus told the court that in about 2000 or 2001 he had moved from Campsie to Minto and was not at the Unit 4,

   
   

   14 Marlowe Street address at the time these proceedings were issued. He claims that he never received notice of the proceedings or that judgment had been entered against him.

2. Ductmaster was not the only company to whom Mr Nicodemus had given guarantees. A number of them pressed him for payment. On

   
   

   30 April 2003, the…