Oppenheim Legal v MCCABE

[2020] FCCA 3086

FEDERAL CIRCUIT COURT OF AUSTRALIA

OPPENHEIM LEGAL v MCCABE [2020] FCCA 3086

Catchwords:
BANKRUPTCY – application for a sequestration order – no appearance by the respondent – whether the Court has jurisdiction under s 43(1)(b) of the Bankruptcy Act 1966 (Cth) – whether any proper basis by reason of which the Court would go behind the judgment debts – sequestration order made.

Legislation:

Bankruptcy Act 1966 (Cth), ss 27, 43, 52

Federal Circuit Court Rules 2001 (Cth), r 13.03C(1)(e)

Applicant: OPPENHEIM LEGAL

Respondent: MARK MCCABE

File Number: SYG 2027 of 2019

Judgment of: Judge Street

Hearing date: 12 November 2020

Date of Last Submission: 12 November 2020

Delivered at: Sydney

Delivered on: 12 November 2020

REPRESENTATION

Counsel for the Applicant: Mr M Collins

Solicitors for the Applicant: Oppenheim Legal

No appearance by or on behalf of the Respondent

ORDERS

1. The hearing proceed pursuant to r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).

2. The consent to act as trustee be filed on or before 13 November 2020.

3. A sequestration order is made against the estate of Mark McCabe.

4. The applicant petitioning creditor’s costs be paid out of the bankrupt estate in accordance with the priority to which it is entitled in an amount agreed by the trustee and/or as taxed.

NOTES

1. The act of bankruptcy occurred on 25 July 2019.

2. A consent to act as trustee signed by Ms Shabnam Amirbeaggi has been provided and will be filed by 13 November 2020.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2027 of 2019

OPPENHEIM LEGAL

Applicant

And

MARK MCCABE

Respondent

REASONS FOR JUDGMENT

1. This is an application for a sequestration order within the Court’s jurisdiction under s 27 of the Bankruptcy Act 1966 (Cth) (“the Act”). The proceedings were commenced on 8 August 2019.

2. Affidavit evidence has been read in support of service of the bankruptcy notice that arose from two judgments obtained in the Supreme Court of New South Wales giving rise to a judgment debt in the bankruptcy notice of $55,772.92, having added interest to the two judgment amounts.

3. The Court is satisfied that the bankruptcy notice was properly served on the respondent. The Court is satisfied on the evidence that the respondent has a dwelling house in Sydney, Australia where his wife and children reside at the time of when the act of bankruptcy was committed within of s 43(1)(b)(ii) of the Act. The Court is satisfied that the act of bankruptcy was committed on 25 July 2019. Accordingly, the Court is satisfied that the requirements of s 43(1) of the Act for the making of a sequestration order have been met.

4. The respondent filed a notice of grounds of opposition on 19 March 2020 and had legal representation that was withdrawn on 2 October 2020.

5. The Court received an email in which the respondent alleged that he wanted an adjournment because he had his computer and phone stolen. The respondent did not appear at the hearing. The Court is satisfied because of that email communication that the respondent was aware of the hearing date. Accordingly, the Court made an order for the hearing to proceed under r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth)

6. As the respondent has not appeared, the respondent’s affidavit evidence has not been read. Suffice to say, however, that the proposition that the Court had no jurisdiction under s 43(1)(b) of the Act is without substance given that the respondent had a dwelling place in Australia at the time of the act of bankruptcy.

7. There is no evidence before the Court that any proceedings have been taken to set aside the judgments obtained in the Supreme Court of New South Wales. The Court is not satisfied that there is any proper basis by reason of which this Court would go behind the judgments. The bald assertions that the respondent does not owe the money are without any identified basis and the respondent has not identified any proper basis by reason of which the respondent has a genuine and arguable claim against the applicant.

8. The Court is satisfied that the applicant petitioning creditor has proved the matters required under s 52(1) of the Act.

9. The Court is not satisfied that the respondent is able to pay his debts and is not satisfied that other sufficient cause why a sequestration ought not to be made has been made out. Accordingly, the Court makes the above orders.

I certify that the preceding nine (9) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 12 November 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 10 December 2020