Owners - Strata Plan 93392 v Sethi, in the matter of Sethi (No 2)
[2025] FedCFamC2G 1093
•15 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Owners - Strata Plan 93392 v Sethi, in the matter of Sethi (No 2) [2025] FedCFamC2G 1093
File number(s): SYG 268 of 2025 Judgment of: JUDGE ZIPSER Date of judgment: 15 July 2025 Catchwords: BANKRUPTCY – application for review of exercise of power by registrar making sequestration order – whether Court satisfied with proof of matters in s 52(1) – requirements for making sequestration order satisfied
PRACTICE AND PROCEDURE – whether to extend interim non-publication order
PRACTICE AND PROCEDURE – consideration of whether to refer party to lawyer for legal assistance by issuing referral certificate
Legislation: Bankruptcy Act 1966 (Cth) ss 43, 52(1), 52(2)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 231(1), 256(1)
Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 rr 4.02, 4.04, 4.06
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 12.01
Cases cited: Bechara v Bates [2021] FCAFC 34; 286 FCR 166
Fang v Lin [2024] FedCFamC2G 747
Owners – Strata Plan 93392 v Sethi, in the matter of Sethi [2025] FedCFam2G 897
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 27 June, 14 July 2025 Place: Parramatta Counsel for the Applicant: Shelley Scott Solicitor for the Applicant: Mills Oakley Respondent: In person ORDERS
SYG 268 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
IN THE MATTER OF AKHIL SETHI
BETWEEN: THE OWNERS - STRATA PLAN 93392
Applicant
AND: AKHIL SETHI
Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
15 JULY 2025
THE COURT ORDERS THAT:
1.The application for review lodged by the respondent on 17 April 2025 is dismissed.
2.The applicant creditor’s costs fixed in the sum of $8,374.50 be paid from the estate of the respondent in accordance with the Bankruptcy Act 1966 (Cth).
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 ZIPSER
INTRODUCTION
On 27 March 2025, a registrar of the Court ordered that the estate of the respondent (Mr Sethi) be sequestrated under the Bankruptcy Act 1966 (Cth) (Act). On 17 April 2025, Mr Sethi lodged an application for review of the registrar’s order (Review Application) pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOAAct). On 27 June and 14 July 2025, I heard the Review Application, as well as interlocutory applications by Mr Sethi.
This judgment addresses and provides reasons in relation to:
(a)the interlocutory applications; and
(b)the Review Application.
On 13 June 2025, I published a judgment with the citation Owners – Strata Plan 93392 v Sethi, in the matter of Sethi [2025] FedCFam2G 897 (June 2025 Judgment) which dealt with earlier interlocutory applications by Mr Sethi. The June 2025 Judgment may assist readers to understand some background matters.
BACKGROUND
The following background is based principally on evidence tendered by The Owners - Strata Plan 93392 (Creditor) at the hearing of the Review Application.
On 6 March 2024, the following order was made in a proceeding in the Supreme Court of New South Wales between Mr Sethi as plaintiff and the Creditor as defendant:
Order, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff pay the defendant’s costs of the proceedings, and of the notice of motion filed 17 November 2023, in the gross sum of $213,000.
On 6 December 2024, a bankruptcy notice founded on the judgment debt (Judgment Debt) and issued on 4 December 2024 (Bankruptcy Notice), was served on Mr Sethi.
Mr Sethi neither filed an application to contest the Bankruptcy Notice nor paid the judgment debt within 21 days after service of the Bankruptcy Notice. It followed that on 27 December 2024, Mr Sethi committed an act of bankruptcy.
On 29 January 2025, the Creditor filed a creditor’s petition which commenced this proceeding (Creditor’s Petition). The Creditor’s Petition sought a sequestration order under s 43 of the Act against the estate of Mr Sethi based on Mr Sethi’s non-compliance with the Bankruptcy Notice.
On 21 February 2025, the Creditor’s Petition was served on Mr Sethi.
On 27 March 2025, there was a hearing of the Creditor’s Petition before a registrar of the Court. Prior to the hearing, Mr Sethi did not file any documents which indicated the ground or basis on which he opposed the making of a sequestration order. Mr Sethi did not attend the hearing. The registrar made the following orders at the end of the hearing:
1. The estate of Akhil Sethi be sequestrated under the Bankruptcy Act 1966.
2. The Applicant Creditor’s costs fixed in the sum of $8353.75 be paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.
3. A copy of this order be provided by the Applicant Creditor to the Official Receiver in Sydney within 2 days.
On 17 April 2025, Mr Sethi lodged the Review Application. Mr Sethi sought the following orders:
1. The orders made by Registrar Morgan on 27 March 2025 in proceeding SYG268/2025 be set aside.
2. The creditor petition be dismissed.
3. An order to stay the execution of the orders made by Registrar Morgan on 27 March 2025 in proceeding SYG268/2025.
4.Any such further order as court deems fit.
At the first return date in respect of the Review Application on 13 May 2025, I made procedural orders, including that Mr Sethi file and serve all evidence on which he wishes to rely at a final hearing by 4 pm on 28 May 2025.
On 22 May 2025, the Court issued, at the request of Mr Sethi, a subpoena directed to the Creditor’s current solicitor, Mills Oakley (MO Subpoena). The documents listed in the schedule to the MO Subpoena were:
(a)the costs agreement between the Creditor and Mills Oakley;
(b)“all correspondence … sent to or received from any agent of the [Creditor] in order to commence Mills Oakley’s engagement and legal representation for the [Creditor]”;
(c)a copy of Mills Oakley’s trust account showing monies placed by or on behalf of the Creditor in Mills Oakley’s trust account in order to have the legal representation commenced; and
(d)a copy of all invoices for the work of Mills Oakley or its agent sent to the Creditor.
On 29 May 2025, there was a hearing before me of the application for a stay referred to in paragraph 3 of the Review Application (Stay Application). Mr Sethi appeared for himself. Shelley Scott of counsel appeared for the Creditor.
As stated above, on 13 May 2025 I ordered that Mr Sethi “file and serve all evidence on which he wishes to rely at a final hearing of his application for review … by 4 pm on 28 May 2025”. I made this order so that, at the hearing of the Stay Application, I could understand the ground or basis of Mr Sethi’s opposition to the making of a sequestration order and consider the evidence on which he relied. Mr Sethi did not file any evidence in response to this order by 29 May 2025. At the hearing of the Stay Application on 29 May 2025, Mr Sethi explained to me that all the evidence on which he intended to rely at the hearing of the Review Application will be produced in response to the MO Subpoena, a notice to produce to be issued to the Creditor, and perhaps a subpoena to be issued to a previous solicitor of the Creditor.
At the end of the hearing on 29 May 2025, I reserved my decision concerning the Stay Application, and listed the Review Application for hearing on 27 June 2025. In circumstances where Mr Sethi had indicated that he needed more time to serve his evidence in support of the Review Application, I made procedural orders, including the following:
2.Mr Sethi file and serve all further materials (evidence and a written submission) on which he wishes to rely at the final hearing by 19 June 2025.
3.Mr Sethi may not rely at the final hearing on evidence not served by 19 June 2025 unless he obtains leave from the Court.
4.The Owners – Strata Plan 93392 file and serve all materials (evidence and a written submission) on which it wishes to rely at the final hearing by 24 June 2025.
LEGISLATION AND PRINCIPLES
Application for review
As stated in Fang v Lin [2024] FedCFamC2G 747 at [22]-[24], in partial reliance on Bechara v Bates [2021] FCAFC 34; 286 FCR 166 at [27]:
(a)A hearing under s 256(1) of the FCFCOA Act seeking review of a registrar’s exercise of power 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.
(b)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 Act. The only onus of the debtor/bankrupt who actively opposes the creditor’s petition is to prove either solvency or any other sufficient cause under s 52(2) of the Act.
(c)The petitioning creditor must prove, and the Court must be satisfied, that the requirements for the making of a sequestration order have been established.
(d)If the Court concludes that the making of a sequestration order is appropriate, the Court will dismiss the review application, leaving the registrar’s extant order in place.
Application for sequestration order
Section 52 of the Act relevantly provides:
(1) At the hearing of a creditor's petition, the Court shall require proof of:
(a)the matters stated in the petition (for which purpose the Court may accept the 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;
and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.
(2)If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:
(a) that he or she is able to pay his or her debts; or
(b)that for other sufficient cause a sequestration order ought not to be made;
it may dismiss the petition.
Rules 4.02, 4.04 and 4.06 of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Bankruptcy Rules) relevantly provide:
Rule 4.02 Requirements for creditor’s petition and supporting affidavit
(1)For subsection 47(1A) of the Bankruptcy Act, a creditor's petition must be in accordance with Form B6.
(2)The affidavit (the verifying affidavit) verifying the petition required by subsection 47(1) of the Bankruptcy Act must:
(a) be included in the petition in accordance with Form B6;
(b) accompany the petition.
(3)The petition must also be accompanied by any affidavits relating to the petition required by rule 4.04.
(4) …
(5) …
Rule 4.04 Creditor’s petition founded on failure to comply with bankruptcy notice etc
(1)If a creditor's petition is founded on an act of bankruptcy specified in paragraph 40(1)(g) of the Bankruptcy Act, the petition must also be accompanied by:
(a) an affidavit stating:
(i) that the records of the Court and the records of the Federal Court have been searched and no application in relation to the bankruptcy notice has been made; or …
(b) an affidavit of service of the relevant bankruptcy notice.
(2)If an affidavit required by paragraph (1)(a) states the matters referred to in subparagraph (1)(a)(i), a copy of the search must be attached to the affidavit.
(3)…
(4)A copy of the bankruptcy notice must be attached to the affidavit required by paragraph (1)(b).
Rule 4.06 Additional affidavits to be filed before hearing
(1)Before the hearing of a creditor's petition, the applicant creditor must comply with this rule
(2) The applicant creditor must file an affidavit that:
(a)states that the documents required to be served under rule 4.05 have been served, and when and how they were served; and
(b)has attached to it a copy of the documents that were served and proof of service in relation to the documents.
(3)The applicant creditor must file an affidavit, of a person who has, no earlier than the day before the hearing date for the petition, searched, or caused a search to be made, in the National Personal Insolvency Index, that:
(a) sets out the details of any references in the Index to the debtor; and
(b)states that there were no details of a debt agreement, about the debt on which the applicant creditor relies, in the Index:
(i) on the day when the petition was presented; and
(ii) on the day when the search was made; and
(c) has attached to it a copy of the relevant extract of the Index.
(4)The applicant creditor must file an affidavit of a person who knows the relevant facts that:
(a)was sworn as soon as practicable before the hearing date for the petition; and
(b)states that each debt on which the applicant creditor relies is still owing.
(5) …
HEARING ON 27 JUNE 2025
At the hearing on 27 June 2025, Mr Sethi appeared in person. Shelley Scott of counsel appeared for the Creditor.
Prior to the commencement of the hearing, Mr Sethi had not filed any evidence or a written submission in support of his case.
At the commencement of the hearing, I gave Mr Sethi a copy of s 52 of the Act. I asked him three times to explain his ground or grounds of opposition to the making of a sequestration order. Mr Sethi avoided answering, or did not answer, this question. It followed that, at the commencement of the hearing, I had no idea or understanding of Mr Sethi’s ground of opposition to the making of a sequestration order.
Adjournment application and related applications requesting referral for pro bono legal assistance and variation of orders made on 29 May 2025 and 13 June 2025
Mr Sethi then made an application to adjourn the hearing. Mr Sethi had not previously foreshadowed or communicated this application to the Court or the Creditor. Ms Scott opposed the adjournment application.
In support of the adjournment application, Mr Sethi sought to read an affidavit of Mr Sethi dated 27 June 2025 (Adjournment Affidavit). Ms Scott did not object to me reading the affidavit. I read the affidavit. The affidavit indicated that Mr Sethi sought to adjourn the hearing for the following reasons:
(a)He wanted the Court to make an order under r 12.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (FCFCOARules) that he be referred to a lawyer for legal assistance (Referral Order). He wanted the hearing to be adjourned until he obtained that legal assistance.
(b)He asserted that Mills Oakley had not complied with the MO Subpoena and “some of the key documents and things have not been produced by the subpoenaed entity”: paragraph 22 of Adjournment Affidavit. He wanted time to resolve this issue.
(c)He had served a notice to produce on the Creditor with the production of documents due on 3 July 2025. He wanted to adjourn the hearing until after the Creditor produced documents.
After reading the Adjournment Affidavit and hearing his oral submissions, I dismissed Mr Sethi’s adjournment application. I stated that I would provide reasons in my judgment concerning the Review Application. My reasons are as follows.
In response to the matter in paragraph 24(a), r 12.01 of the FCFCOA Rules, titled “Referral for legal assistance”, relevantly provides:
(1)The Court may refer a party to a lawyer for legal assistance by issuing a referral certificate in accordance with the approved form.
(2)In making a referral under subrule (1), the Court may take the following matters into account:
(a) the means of the party;
(b) the capacity of the party to otherwise obtain legal assistance;
(c) the nature and complexity of the proceeding;
(d) any other matters the Court considers appropriate.
For the following reasons, I considered it not appropriate to make a Referral Order. First, Mr Sethi provided no evidence, let alone persuasive evidence, as to why he did not request referral for legal assistance in the four months between the date the Creditor filed and served the Creditor’s Petition (in late January 2025) and May 2025. In the absence of an explanation for his delay, a request for legal assistance in the week before a final hearing appears to be a strategy to delay the hearing. Second, r 12.01(2)(a) of the FCFCOA Rules directs attention to “the means of the party”. Mr Sethi has not provided any evidence in admissible form, either for the hearing of the Review Application or in support of a request for a Referral Order, concerning his means or financial position. That he has been declared bankrupt does not prove he is impecunious or has no means to pay for legal services. For example, he stated in paragraph 11 of the Adjournment Affidavit that he is “seeking legal advice” in relation to what he claims was an unlawful eviction. This evidence suggests that Mr Sethi may have capacity to obtain legal assistance without the Court making a Referral Order. Third, r 12.01(2)(c) of the FCFCOA Rules directs attention to “the nature and complexity of the proceeding”. In circumstances where Mr Sethi has chosen not to identify a ground of opposition to the making of a sequestration order and no ground is evident from the face of the materials, this proceeding is not complex. Fourth, Mr Sethi impresses me as an intelligent person who, if he is unwilling or unable to pay for legal services, has the capacity to read relevant provisions of the Act and Bankruptcy Rules and determine if he has a valid ground of opposition to the Creditor’s Petition.
I told Mr Sethi that I would not make a Referral Order and that I would provide reasons in my judgment concerning the Review Application. My reasons are in the above paragraph.
In response to the matter in paragraph 24(b), first, I was not persuaded from the assertions in Mr Sethi’s affidavit that Mills Oakley had not complied with the MO Subpoena. Second, Mr Sethi did not explain to the Court the relevance to the Review Application of any document he claims was not produced.
In response to the matter in paragraph 24(c), first, Mr Sethi did not explain the relevance to the Review Application of documents sought in the notice to produce. Second, Mr Sethi has not explained why he did not serve the notice to produce at an earlier time. In the absence of an explanation for his delay, the late service of a notice to produce appears to be a strategy to delay the hearing.
Mr Sethi also applied to vary the orders I made on 29 May 2025 and 13 June 2025, “so as to incorporate the referral in securing the legal representation and to have the solicitor retained under pro bono referral run the matter and file any evidence and submissions as required”: paragraph 17 of Adjournment Affidavit. Since I declined to make a Referral Order and declined Mr Sethi’s request to adjourn the hearing, the application to vary previous orders I made falls away or has no utility.
Application to extend interim non-publication order
On 13 June 2025, I made the following order (Interim Non-Publication Order):
Pursuant to ss 230, 233 and 234 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the name of the respondent is not to be disclosed upon publication of these orders and the accompanying judgment until 5 pm on 27 June 2025.
Paragraphs 27 to 31 of the Adjournment Affidavit contained evidence in support of an application to extend the Non-Publication Order.
Section 231(1) of the FCFCOA Act states:
The Federal Circuit and Family Court of Australia (Division 2) may make a suppression order or non - publication order on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c) the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
In the June 2025 Judgment at [59] I wrote:
Section 231(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOAAct) specifies the grounds on which the Court may make a non-publication order. Mr Sethi has not identified the ground on which he relies. It is not evident that any ground applies in the present matter.
Mr Sethi asserted in paragraph 28 of the Adjournment Affidavit that a non-publication order “is necessary to prevent prejudice to the proper administration of justice” and “necessary to protect the safety of” Mr Sethi. The affidavit did not contain any evidence to make good these assertions. Accordingly, after hearing brief submissions from Mr Sethi, I declined to extend the Interim Non-Publication Order.
Hearing of Review Application
Ms Scott sought to:
(a)read the affidavit of Sandro Li Causi dated 28 January 2025 which verified the Creditor’s Petition;
(b)read the affidavit of service of Richard Mumford filed on 4 March 2025 (which was dated “28/02/24” in the jurat next to Mr Mumford’s signature although it appears obvious that the number “24” was a typographical error and should be “25”), which annexed various documents, including the Creditor’s Petition and the affidavit of service of Mr Mumford dated 9 December 2024;
(c)read the affidavit of final search of Ashlee Thompson dated 26 June 2025;
(d)read the affidavit of final debt of James Patsis dated 26 June 2025; and
(e)tender a schedule of costs dated 26 June 2025.
For most or all items of evidence, Mr Sethi did not accept the item of evidence had been served on him and stated that he was not aware that the Creditor intended to read or tender the item of evidence at the hearing. For each item of evidence, during the hearing:
(a)I ensured that Mr Sethi had (whether in paper form or available electronically) a copy of the item of evidence, and gave Mr Sethi an opportunity to review the item of evidence and make objections, if he wished, to the admissibility of the item of evidence.
(b)Mr Sethi made objections to the admissibility of most or all items of evidence.
(c)After considering Mr Sethi’s objections, I considered that the item of evidence was admissible. I read the affidavits and received the schedule of costs into evidence.
I asked Mr Sethi whether there was any evidence on which he wished to rely at the hearing of the Review Application. He stated that he did not wish to tender any evidence, including any documents produced by Mills Oakley in response to the MO Subpoena.
Ms Scott then made closing submissions. Ms Scott helpfully identified the evidence which satisfied each matter in s 52(1) of the Act and in rr 4.02, 4.04 and 4.06 of the Bankruptcy Rules which the Creditor needed to satisfy.
I then invited Mr Sethi to make closing submissions. He stated two matters as follows:
(a)First, Mr Sethi complained that on 29 May 2025 I ordered that the Creditor “file and serve all materials (evidence and a written submission) on which it wishes to rely at the final hearing by 24 June 2025” (see paragraph 16 above), but the Creditor had not complied with this order.
(b)Second, Mr Sethi asked the Court to go behind the Judgment Debt. I asked Mr Sethi why the Court should go behind the Judgment Debt. Mr Sethi replied that he could not explain why the Court should go behind the Judgment Debt.
Ms Scott then made closing submissions in reply. In response to Mr Sethi’s first point, Ms Scott’s position was that, at the listing on 29 May 2025, in discussing the evidence on which the Creditor intended to rely at the hearing of the Review Application, she informed Mr Sethi and the Court that at the hearing of the Review Application the Creditor would rely on much of the evidence on which it relied at the hearing before the registrar on 27 March 2025. The evidence created prior to 27 March 2025 was served on Mr Sethi prior to 27 March, and hence the Creditor had complied with the order referred to in paragraph 16 above. In any event, to avoid the risk of procedural unfairness to Mr Sethi, Ms Scott was content for the hearing of the Review Application to be adjourned for a short while to give Mr Sethi further time to consider and respond to the materials on which the Creditor relied.
Following discussion with the parties, I then made the following procedural orders:
(1) By no later than 4.00 pm on 10 July 2025, the respondent is to file and serve:
(a) any further objections to the admissibility of the following material relied upon by the applicant at the hearing on 27 June 2025:
(i) affidavit of Sandro Li Causi contained within the Creditors Petition filed on 29 January 2025;
(ii) affidavit of service of Richard Mumford filed on 4 March 2025;
(iii) affidavit of search of Ashlee Thompson filed on 26 June 2025;
(iv) affidavit of debt of James Patsis filed on 26 June 2025;
(v) Schedule of Costs document dated 26 June 2025; and
(b) any evidence in reply to the evidence listed in sub-paragraph (a).
(2) The matter is listed for resumed final hearing at 2.00 pm on 14 July 2025.
I added that, if Mr Sethi provided further objections to the admissibility of the material, at the resumed hearing on 14 July 2025 I would review my rulings concerning the admissibility of the material.
RESUMED HEARING ON 14 JULY 2025
Between the first hearing day on 27 June 2025 and the resumed hearing on 14 July 2025, Mr Sethi did not file or serve any objections or evidence referred to in the order I made on 27 June 2025.
At the resumed hearing on 14 July 2025, Mr Sethi appeared in person. Ms Scott appeared for the Creditor.
Mr Sethi confirmed that he had not filed or served any objections or evidence referred to in the order I made on 27 June 2025. He explained that he was not in position to file or serve this material until the Court made a Referral Order (see paragraph 24(a) above) and he obtained legal assistance. As explained above, at the hearing on 27 June 2025 I declined to make a Referral Order and communicated this decision to Mr Sethi. Further, in light of Mr Sethi’s skills in preparing the Adjournment Affidavit, his two affidavits I considered in the June 2025 Judgment, and his oral objections to the admissibility of evidence at the hearing on 27 June 2025 (see paragraph 38(b) above), I considered Mr Sethi was capable of preparing further objections and reply evidence without legal assistance.
CONSIDERATION
Section 52(1)(a) of Act and r 4.02 of Bankruptcy Rules: Proof of the matter in s 52(1)(a) is contained in the affidavit of Ms Li Causi. I am satisfied of the proof.
Section 52(1)(b) of Act and rr 4.02 and 4.04 of Bankruptcy Rules: Proof of the matter in s 52(1)(b) is contained in the affidavit of Mr Mumford filed on 4 March 2025. I am satisfied of the proof, for example:
(a)that on 21 February 2025 Mr Mumford served on Mr Sethi the Creditor's Petition and, in compliance with r 4.02(3) of the Bankruptcy Rules, the petition was accompanied by the two affidavits referred to in r 4.04(1); and
(b)that the two affidavits referred to in r 4.04(1) had attached to them the documents referred to in r 4.04(2) and (4).
Section 52(1)(c) of Act: Proof of the matter in s 52(1)(c) is contained in the affidavit of Mr Patsis filed on 26 June 2025. I am satisfied of the proof.
Rule 4.06 of Bankruptcy Rules: Proof of the matters in r 4.06(2) is contained in the affidavit of Mr Mumford filed on 4 March 2025. For example, Mr Mumford gives evidence of “when and how [the specified documents] were served”. Proof of the matters in r 4.06(3) is contained in the affidavit of Ms Thompson filed on 26 June 2025. Proof of the matter in r 4.06(4) is contained in the affidavit of Mr Patsis filed on 26 June 2025. I am satisfied of the proof in these three affidavits.
Section 52(2) of Act: Mr Sethi has not satisfied me of either matter in s 52(a) or (b) of the Act.
It follows from the above that I am satisfied that the requirements for the making of a sequestration order have been established. I am also satisfied that the making of a sequestration order is appropriate. Accordingly, I will dismiss the Review Application, and thereby leave the sequestration order made by the registrar on 27 March 2025 in place.
COSTS
As explained in paragraphs 37 and 38 above, at the hearing on 27 June 2025 Ms Scott tendered a schedule of costs (Costs Schedule) totalling $8,382.50. Mr Sethi was provided with a copy of the Costs Schedule. At the hearing on 14 July 2025, Ms Scott explained, with reference to r 13.03 of the Bankruptcy Rules and applicable items in Schedule 3 of the Federal Court Rules 2011 (Cth), the applicant’s claim for costs of $8,374.50. After Ms Scott explained the applicant’s claim with reference to the Costs Schedule and Schedule 3 of the Federal Court Rules, I asked Mr Sethi if he disagreed with any part of Ms Scott’s analysis or claim. Mr Sethi gave a non-responsive answer and hence did not disagree. I am satisfied that the Creditor is entitled to costs of $8,374.50.
ADDITIONAL MATTERS
Following the hearing on 27 June 2025, Mr Sethi sought to lodge with the Court and have made returnable before me a document titled “Interim Application”. The document sought the same orders as those I considered and dismissed on 27 June 2025. I invited submissions by email from the parties as to whether the filing of the document might involve an abuse of process on the basis that Mr Sethi might be seeking to relitigate matters determined at the hearing on 27 June 2025. I stated that I would consider the issue further at the resumed hearing on 14 July 2025. At the conclusion of the resumed hearing, I stated that I would deliver judgment in respect of the Review Application on 15 July 2025. I have read the parties’ submissions on this issue, contained in emails dated 1, 2 and 13 July 2025. I consider there is no utility in permitting the Interim Application to be filed and made returnable before me.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 15 July 2025
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