Owners Corporation 1 Plan No PS648585D v Pomella, in the matter of Pomella
[2024] FedCFamC2G 1275
•26 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Owners Corporation 1 Plan No PS648585D v Pomella, in the matter of Pomella [2024] FedCFamC2G 1275
File number(s): MLG 2655 of 2024 Judgment of: JUDGE TAGLIERI Date of judgment: 26 November 2024 Catchwords: BANKRUPTCY - review of Registrar’s decision to make a sequestration order – hearing de novo – validity of bankruptcy notice – section 41(5) applies – whether applicant debtor is insolvent – application dismissed Legislation: Bankruptcy Act 1966 (Cth) ss 40(1), 41(5), 43, 52
Evidence Act 1995 (Cth) s 140
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256(1)
Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth)
Cases cited: Bechara v Bates [2021] FCAFC 34
Deputy Commissioner of Taxation v Cumins (No 5) [2008] FCA 794
Deputy Commissioner of Taxation v De Simone Consulting Pty Ltd [2007] FCA 548
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28
Re Sarina; Ex Parte Wollondilly Shire Council [1980] FCA 175
Robert Hudson Junior v Thomas James Donald [1997] FCA 852
Sandell v Porter (1966) 115 CLR 666
Seovic Civil Engineering Pty Ltd v Groeneveld (1999) 87 FCR 120
St George Wholesale Finance Pty Ltd v Spalla [2000] FCA 1094
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of hearing: 18 November 2024 Place: Melbourne Counsel for the Applicant: Mr LaPirow Solicitors for the Applicant: Davies Moloney Counsel for the Respondent: Ms Tyson Solicitors for the Respondent: Condello Lawyers Solicitor for the Interested Person: Mr Maxted, Law Squared ORDERS
MLG 2655 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
IN THE MATTER OF MARIA POMELLA
BETWEEN: OWNERS CORPORATION 1 PLAN NO. PS648585D
Applicant
AND: MS MARIA MICHELLE (NOW KNOWN AS MARIA) POMELLA
Respondent
ANNA ODRZYWOLSKA
Interested Person
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
26 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Application for Review filed 3 October 2024 is dismissed.
2.If any party seeks an order for costs against another party, such application is to be made within 7 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
These proceedings come before me by way of an application for review filed on 3 October 2024 (“the Review Application”). The applicant, Maria Pomella, is the debtor in respect of Orders made by a Judicial Registrar of this Court on 12 September 2024 to sequestrate her estate under the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”). The respondent is the creditor petitioner for a sequestration order. The interested party is the Trustee appointed to administer the bankrupt estate.
BACKGROUND
By the Review Application, the debtor seeks the following orders:
·That the Orders made by Registrar Edwards on 12 September 2024 in proceeding MLG2655/2024 be set aside;
·That the creditor’s petition filed by the creditor be dismissed; and
·That the Court make no order as to costs.
The Review Application was listed for hearing before me on 19 November 2024. The debtor made an application for adjournment at the commencement of the hearing. After receiving evidence and submissions about the reasons for the adjournment sought, the issues to be determined and prejudice to the parties, I declined to grant the adjournment and provided oral reasons for so deciding.
APPLICATIONS FOR REVIEW
A hearing under s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) seeking a review of a Registrar’s decision is a hearing de novo and the creditor’s petition is considered afresh. The review does not hinge, or focus, upon error in the decision of the Registrar.
In a hearing de novo the petitioning creditor is the true applicant and carries the onus of proving the application by bringing forward the evidence required by s 52(1) of the Bankruptcy Act. The debtor/bankrupt does not need to show error in the Registrar’s decision.
Accordingly, the petitioning creditor must establish that the requirements for the making of a sequestration order have been established: Bechara v Bates [2021] FCAFC 34. The debtor may seek to adduce evidence to demonstrate either solvency,[1] or other sufficient cause for not making a sequestration order.[2]
[1] Section 52(2)(a) of the Bankruptcy Act.
[2] Section 52(2)(b) of the Bankruptcy Act.
If the Court concludes that the making of a sequestration order is appropriate, it will dismiss the Review Application, leaving the Registrar’s extant order in place.
Section 43 of the Bankruptcy Act sets out the Court’s jurisdiction permitting it to make sequestration orders. The exercise of that jurisdiction depends on the petitioning creditor establishing the commission of an act of bankruptcy by the debtor. There are also other prerequisites to the exercise of jurisdiction to make a sequestration order, but they are not in dispute in these proceedings and need not be the subject of these reasons.
Section 40(1) of the Bankruptcy Act provides a list of the matters which constitute acts of bankruptcy and can serve as the basis for a sequestration order. In this proceeding, the act of bankruptcy relied upon is pursuant to s 40(1)(g) of the Bankruptcy Act. Namely that the creditor has obtained a final judgment or order against the debtor which has not been stayed, which has been served on the debtor within the requisite time, and in relation to which the debtor does not have a counterclaim, set off or cross-claim which is equal to or greater than the amount of the debt.
The official receiver may issue a bankruptcy notice pursuant to s 41 of the Bankruptcy Act on the application of a creditor who has obtained a final judgment, subject to that amount being at least $10,000. An act of bankruptcy will occur where a bankruptcy notice has been issued, served and remains unsatisfied.
Section 52(1) of the Bankruptcy Act prescribes the matters required to be proved by the petitioning creditor before the Court may make a sequestration order against the estate of a debtor. At the hearing of a creditor’s petition, the Court requires proof of:
(a)The matters stated in the petition (for which purpose the Court may accept an affidavit verifying the petition as sufficient);
(b)Service of the petition; and
(c)The fact that the debt or debts on which the petitioning creditor relies is or are still owing.
Part 4 of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) also applies in relation to a creditor’s petition seeking a sequestration order against the estate of a debtor. Those rules prescribe, among other things, the form of the creditor’s petition, the form and content of the verifying affidavit required by s 47(1) of the Bankruptcy Act, the content of the affidavits proving the debt and rules relating to service.
Relevantly, before the hearing of the creditor’s petition, an applicant creditor must:
(a)File an affidavit deposing to the service of documents required to be served under rule 4.05;
(b)No earlier than the day before the hearing date for the petition, search or cause a search to be made in the National Personal Insolvency Index and file an affidavit setting out the results of that search, attaching a copy of the relevant extract of that Index; and
(c)As soon as practicable before the hearing date, file an affidavit of a person who knows the relevant facts which states that each debt on which the applicant creditor relies is still owing.
ARE THE PREREQUISITES FOR A SEQUESTRATION ORDER MET?
The debtor invites the Court to set aside the sequestration Order made by the Registrar on 12 September 2024 because it ought not be satisfied that the power to make a sequestration order should be exercised.
Initially several grounds were advanced for contending that the sequestration Order should not be made, but ultimately, the debtor relied only on two grounds pursuant to s 52(2). First, she relies on an alleged defect in the Bankruptcy Notice issued pursuant to s 41 of the Bankruptcy Act. Alternatively, that she is solvent, meaning she is able to pay her debts when due.
With respect to the invalidity ground referred to at [15] above, the debtor contends that the Bankruptcy Notice is invalid because it fails to refer to the sum of $2,000 she paid in reduction of the judgment debt on the same day the judgment was entered, namely 3 April 2024.
The debtor through her counsel specifically abandoned any contention that the sequestration Order be set aside due to:
(a)Going behind the Magistrate’s Court judgment debt to demonstrate error in the assessment of the amount due to the creditor;
(b)Defects in relation to how she was described by name in the Bankruptcy Notice or documents filed by the creditor for the purpose of the sequestration order; and
(c)A claim that she was solvent and able to pay her debts based on income received from Centrelink.
MATERIALS RELIED UPON
The creditor read the following:
(a)The Affidavit of David William Harper sworn 23 October 2024 and filed 12 November 2024, with line 8 of paragraph [5], the last sentence of paragraph [7] and paragraphs [9] to [12] struck out.
(b)The Affidavit of the trustee Anna Marta Odrzywolska affirmed and filed 15 November 2024.
(c)The bundle of documents which were before the Registrar Edwards which was marked for identification as R1 and included:
(i)The Creditor’s Petition filed 8 August 2024;
(ii)The Affidavit of Service of Scott Dent affirmed 14 August 2024 and filed 20 August 2024;
(iii)The Supplementary Affidavit of Service of Margaret Catherine Crilly sworn and filed 12 September 2024;
(iv)The Affidavit of Service of Bankruptcy Notice of John William Russell service sworn 23 July 2024 and filed 8 August 2024;
(v)The Consent to Act as Trustee dated 1 August 2024 and lodged on 8 August 2024; and
(vi)The Orders of the Registrar dated 12 September 2024.
(d)The Affidavit of Debt of Louise Hinchen affirmed 11 September 2024 and filed 12 September 2024, which was entered as Exhibit R2.
The debtor relied upon the following:
(a)The Affidavit of Maria Pomella affirmed 30 October 2024 and lodged on 31 October 2024, excluding paragraphs [16], [17] to [18], [24] at line four stating “I usually derive from my business”, [26] to [30] and [43].
(b)The Affidavit of Maria Pomella affirmed and filed on 18 November 2024, excluding paragraph [7], which was entered as Exhibit A1. This affidavit was not sealed at the commencement of the hearing.
The debtor also gave oral evidence at the hearing.
VALIDITY OF THE BANKRUPTCY NOTICE
It was an agreed fact that the sum of $2,000 had been paid by the debtor in reduction of the judgment debt of $25,314.61 prior to filing the Creditor’s Petition and that the sum payable to the creditor was in fact $23,314.61.[3]
[3] Affidavit of Debt of Louise Hinchen affirmed 15 November 2024.
It was also not in dispute that the Bankruptcy Notice served on the debtor did not refer to the sum of $2,000 at item 5 of the Notice, which was otherwise in accordance with the prescribed form.[4]
[4] Affidavit of Service of Bankruptcy Notice of John William Russell sworn 23 July 2024 and filed 8 August 2024, Annexure “A”.
The controversy between the parties was whether the failure referred to at [22] of these reasons rendered the Bankruptcy Notice invalid, defective or misleading, such that the sequestration order should be set aside.
THE DEBTOR’S EVIDENCE
The debtor’s evidence about her ability to pay debts was inconsistent and unsatisfactory. For example, she variously stated that she would be able to pay the debt due to the creditor by:
·Immediate sale of an Inverloch property she jointly owned with her father which she stated was unencumbered and estimated was valued at $736,000, which her father agreed she could receive three quarters of the sale proceeds.
·Seeking to raise finance using the Inverloch property as security, with the consent of her father.
·Using savings in her bank accounts,[5] but she has failed to annex any bank statement identifying material savings and I do not accept that she has been unable to do so because her accounts have been frozen. It is to be reasonably expected that bank statements and records relating to Love Pomella Pty Ltd (“Love Pomella”) and the properties she owns up until the appointment of the Trustee in bankruptcy would be in her possession or control. Indeed, she has exhibited to her Affidavit a recent bank statement purporting to be one under her control.
·Giving different estimates of the value of 229 Blyth Street, with the first being spurious and not based on any source other than a personal opinion which she has not demonstrated any qualification to give.[6] Further, she initially grossly underestimated the liability to the National Australia Bank secured against this property.[7]
·Suggesting any of the properties she owns could be placed on the market to satisfy her debts and had previously stated that they could be sold quickly.[8] Around the same time, she was representing to the bankruptcy trustee that the Brunswick Street property could not be sold.
[5] Affidavit of Maria Pomella affirmed 30 October 2024, [43].
[6] Affidavit of Maria Pomella affirmed 18 November 2024, [13].
[7] Affidavit of Maria Pomella affirmed 18 November 2024, [15].
[8] Affidavit of Maria Pomella affirmed 30 October 2024, [37].
Furthermore, the debtor has provided conflicting information about her income, including from sources such as the Love Pomella business and rental income received from properties she owns.[9] She also admits she is in default of her obligations in respect of mortgages to the National Australia Bank but is vague about the nature of the default.
[9] Cf. Affidavit of Maria Pomella affirmed 30 October 2024, [32] and [38].
I do not accept her recent evidence about her expenses as it conflicts with that which she has told the bankruptcy trustee, which is also inconsistent.[10] Statements given in her affidavit of 30 October 2024 about her response to being served with the Creditor’s Petition are also not plausible and I do not accept them. The debtor was on notice of the Creditor’s Petition and the hearing before the Registrar due to being served.[11] As she states she took legal advice, I do not accept she would have ignored the proceedings.[12]
[10] Affidavit of the trustee Anna Marta Odrzywolska affirmed 15 November 2024, [14].
[11] [18] of these reasons.
[12] Affidavit of Maria Pomella affirmed 30 October 2024, [47].
I accept that the debtor has had personal challenges impacting on her giving attention to the Creditor’s Petition and these proceedings, but I do not accept that her prioritising of those matters was reasonable or explains the shortcomings described above in her evidence. Essentially, I consider the debtor’s claims about inability to prepare her evidence to demonstrate solvency unconvincing and that her evidence under cross-examination was sometimes argumentative and defensive.
EVALUATION
Is the bankruptcy notice invalid or defective?
Counsel for the debtor argued that the mere failure of the Bankruptcy Notice to refer to the payment of $2,000 rendered it invalid. Reliance was placed on the Federal Court judgment in St George Wholesale Finance Pty Ltd v Spalla [2000] FCA 1094 (“Spalla”) and other subsequent authorities following the reasoning of Heerey J in Spalla.
In Spalla, the Court found the bankruptcy notice to be invalid because it was not in accordance with the form prescribed by the applicable Bankruptcy Regulations because it failed to include as required payments made in reduction of the debt subject of the notice. Heerey J concluded that this failure was not merely formal. Further, that the defect was not confined to stating a total sum in excess of what was in fact due to the creditor, so s 41(5) of the Bankruptcy Act did not apply, meaning that the failure of the debtor to give the notice disputing the validity of the notice did not cure the defective notice.
Counsel for the petitioning creditor relied on two authorities of the Federal Court, one decided before Spalla and the other after.[13] In the earlier judgment of Robert Hudson Junior v Thomas James Donald [1997] FCA 852 (“Robert Hudson”), after observing that the bankruptcy notice overstated the amount owing by $2.00, Lindgren J discussed the interpretation to be given to requirement to provide a bankruptcy notice in accordance with Form 4 of the applicable Bankruptcy Regulations and s 41(5) of the Bankruptcy Act, providing that a notice is not invalid only because it overstates the sum due. He stated:
How do subss 41(5) and (6) apply to the new form? Clearly, the expression in subs 41(5) “the sum specified in the notice as the amount due to the creditor” is apt to refer at least to the amount shown as “Total debt owing.” Does it also refer to the component parts of that amount, in particular, “Amount of judgment or order”? Although the contrary is arguable, I think that it does, at least in a case such as the present, where the overstatement in the “Total debt owing” is no more than a reflection of an overstatement in one of those elements. Except in a case of an arithmetical error of addition, an overstatement of the “Total debt owing” will always predicate an error in one or more of the component elements. To confine the operation of the subsections to a case where there is an overstatement only of the “Total debt owing” due to an arithmetical error of addition would be too narrow a construction. Where, as here, the overstatement of the amount of the “Total debt owing” is attributable to an overstatement in the amount of one or more components in the Schedule, the excessive specification of “the sum specified in the notice as the amount due to the creditor” to which subs 41(5) refers, extends to embrace the corresponding and causative excessive specification in the Schedule of an amount or amounts of the latter kind.
(Emphasis added.)
[13] Robert Hudson Junior v Thomas JamesDonald [1997] FCA 852 and Deputy Commissioner of Taxation v Cumins (No 5) [2008] FCA 794.
Counsel for the crediting petitioner correctly observed that this authority was not drawn to the attention of the Court in Spalla. Regardless of this, I respectfully agree with the logic and reasoning of Lindgren J. If the argued defect in a bankruptcy notice relates to a judgment debt and is confined to a failure to refer to a sum paid after a judgment which the debtor has knowledge of being made, as a matter of cause and effect and in fact, the overstatement is only as to the amount owing.
Subsequently, in Deputy Commissioner of Taxation v Cumins (No 5) [2008] FCA 794 (“Cumins”), Gilmour J of the Federal Court addressed the apparent competing lines of authority in Robert Hudson and Spalla at [33] of his reasons. His Honour was conscious of the authority of Spalla and others following it but emphasised the different purposes of ss 306 and 41(5) of the Bankruptcy Act. Instructively, referring to the purpose of s 41(5), he stated:
[…] Furthermore, s 41(5), in contrast to s 306, is not expressed in terms of the existence of a “defect” in a bankruptcy notice. Rather, it concerns whether the amount specified in the bankruptcy notice as due to the creditor exceeds the amount in fact due. Inevitably any overstatement will broadly be for one or two reasons. First, there is an error or errors in one or more of items 1-5 set out in column 2 of the Schedule to the bankruptcy notice. Then, when items 1-5 are added up they produce an excessive total at item 6. Second, there is an arithmetical error in adding up items 1-5. Of course there could be errors of both kinds occurring in the one notice. The intent of s 41(5) is, in my opinion, to consider the question of whether the amount stated is excessive as well as why that is the case. This approach to its construction is consistent with the observations of the Full Court in Seovic at [36] to which I have referred concerning the need for the debtor, when giving notice under s 41(5), to provide sufficient information to enable the creditor to identify the nature of the misstatement. I apprehend that this was intended to mean that information needs to be provided disclosing not just that the amount stated as due is excessive but the reason(s) why that is said to be so.
Ultimately, his Honour concluded at [34] that the issue of the excessive amount requires a composite analysis, and that is not apt to characterise the composite parts as discrete errors.
In the circumstances of this case it is common ground that the debtor did not give a notice to the creditor pursuant to s 41(5) of the Bankruptcy Act, and knew she had paid $2,000 on 3 April 2024, which on her case meant that the amount due was overstated. Factually, the circumstances are entirely distinguishable from Spalla where multiple entities had made payments in reduction of the judgment debt and the debtor could not reasonably have been expected to know that the amount stated in the bankruptcy notice was overstated and if so by how much.
In view of the facts referred to at [34] of these reasons and the purpose of s 41(5) of the Bankruptcy Act as expressed in authorities I am bound to follow, I am satisfied that s 41(5) does apply and because the debtor did not give notice to the creditor of the payment of $2,000 after the judgment was entered by the Magistrate’s Court, the Bankruptcy Notice is not defective by operation of statute.
I reject the submission that in factual circumstances where a bankruptcy notice includes “nil” falsely or mistakenly when a payment is made by the debtor after the act of bankruptcy, s 41(5) has no work to do. That would defeat the purpose of s 41(5) and is, in my view, contrary to established principles of statutory interpretation. In arriving at this conclusion I refer to the observations of the High Court in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28. Their Honours stated that:
(a)Conflicting statutory provisions should be reconciled so far as is possible and the process of construction must always begin by examining the context of the provision that is being construed;
(b)Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions;[14] and
(c)A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.[15]
[14] At [69]-[71].
[15] At [91]-[93].
In Cumins, Gilmour J considered the construction of s 41(5) having regard to the comments of the Court in Seovic Civil Engineering Pty Ltd v Groeneveld (1999) 87 FCR 120 and the purposes of the regulation of bankruptcy notices.[16]
[16] At [37]-[41].
I do not accept the contention that the Bankruptcy Notice was misleading. The debtor was aware of the judgment entered against her and the amount of it, although she seems not to have agreed with the judgment. She was also aware of the payment of $2,000 on 3 April 2024 and that it had not been accounted for at the time of judgment.[17] In these circumstances she had actual knowledge that the amount payable was $2,000 less and could not in my view have been misled. Rather, s 41(5) of the Bankruptcy Act provided the logical means by which she could address the overstatement of the sum due.
[17] Concession under cross-examination.
Is the debtor able to pay her debts?
The principles of law governing whether a debtor is solvent and able to pay their debts are settled and referred to in Sandell v Porter (1966) 115 CLR 666. Relevantly, they are:
·That the debtor is not limited to cash resources immediately available but extends to money that can be realised by a sale or mortgage of assets within a relatively short time;
·The conclusion of insolvency ought to be clear from consideration of the debtors financial position in its entirety and ought not be drawn from evidence of temporary lack of liquidity; and
·It is the debtor’s inability to use cash or what can be commanded through use of his or her assets to meet debts as they fall due which indicates insolvency.
It has also been established that consideration of whether a debtor is able to pay debts as they fall due is not confined to what is able to available to them from their own money and does not mean “willing and able to pay”.[18] Further, that once there is proof of an act of bankruptcy the debtor is required to satisfy the Court of solvency on the balance of probabilities.[19]
[18] Re Sarina; Ex Parte Wollondilly Shire Council [1980] FCA 175; 32 ALR 596, 376.
[19] Deputy Commissioner of Taxation v De Simone Consulting Pty Ltd [2007] FCA 548; and s 140 of the Evidence Act 1995 (Cth).
I am satisfied that the debtor has a number of real properties but all except one are subject to mortgage to secure at least sizeable liabilities identified in her affidavit affirmed 30 October 2024. The bankruptcy trustee has ascertained the extent of the liabilities and said that the debtor is in default concerning all of them.[20] Counsel for the debtor handed up an aide memoire which outlined various sources of funding available to the debtor. I consider the aide memoire to be speculative and does not constitute reliable or admissible evidence about the source of funds she may have to satisfy her indebtedness.
[20] Affidavit of the trustee Anna Marta Odrzywolska affirmed 15 November 2024, [6] and Annexures “AO-11”, “AO-12” and “AO-13”.
In addition, due to the unsatisfactory nature of the debtor’s evidence about her income and expenses, I am not persuaded that she has capacity to meet her regular expenses and accepting the evidence of the trustee which appears more reliable, I do not accept that she has any significant savings.
Counsel for the debtor conceded that she did not rely on income from Centrelink to demonstrate her solvency, meaning that she only relies on rental income and income from Love Pomella. As I have found her evidence about Love Pomella unreliable, it seems clear to me that based on rental income alone there is a great deal of doubt that she is not able to pay her debts as and when they fall due.
Taking the debtor’s case at its highest, the only potential basis upon which solvency is established in my view is a proposal that the unencumbered real estate at Inverloch be sold. I am not persuaded on the balance of probabilities of solvency on the suggestion that other real estate subject to mortgage be sold. This is either because she states one is not fit to be sold and the others are heavily encumbered and/or she is in default of obligations under mortgages.
Although there is likely to be considerable equity in the property at Inverloch owned by the debtor with her father, because I found her evidence unreliable in many respects, I cannot accept her statement that her father does not oppose the sale of this property. It would have been a simple matter for her to file an affidavit from her father. Instead, by her own evidence she manages her father’s accounts, which raises concern as to conflict of interest and whether the father does agree to a sale of the property.
In any event, in the absence of evidence from a reliable source as to a reasonable timeframe for the sale of the Inverloch property, and other liabilities and expenses of the debtor, I am not satisfied that she is solvent, meaning able to pay all her debts within a relatively short period.
In arriving at this view I also take into account that the debtor has not applied for a stay of the sequestration order and has not fully cooperated in providing information to the trustee, despite the passage of over two months since the sequestration order was made. It is relevant that a professional trustee with the knowledge, skill and experience to assess solvency is unable to be satisfied that the debtor is solvent.
CONCLUSION
I am satisfied that all requirements for a sequestration order are satisfied. Each ground relied upon to persuade the Court that the creditors petition should be dismissed has failed and accordingly the Court will make an order dismissing the Review Application.
In view of this conclusion, I propose to make orders for costs against the debtor relating to these proceedings. If the parties agree, I will determine what costs orders should be made on the basis of written submissions.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 26 November 2024
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