Owners Strata Plan No 7311 v Chowdhury
[2024] FedCFamC2G 936
•18 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Owners - Strata Plan No 7311 v Chowdhury [2024] FedCFamC2G 936
File number(s): PEG 108 of 2024 Judgment of: JUDGE STREET Date of judgment: 18 September 2024 Catchwords: BANKRUPTCY – sequestration order annulled Legislation: Bankruptcy Act1966 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 6 Date of hearing: 18 September 2024 Place: Sydney Solicitor for the Applicant: Mr P Monaco of Gv Lawyers Pty Ltd Solicitor for the Respondent: The Respondent did not appear ORDERS
PEG 108 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
IN THE MATTER OF MEHDI HOSSAIN CHOWDHURY
BETWEEN: THE OWNERS OF HEXAGONS NO 2 STRATA PLAN 7311
Applicant
AND: MEHDI HOSSAIN CHOWDHURY
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
18 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to s 153B of the Bankruptcy Act 1966 (Cth) the sequestration order made by Registrar Trott on 19 August 2024 is annulled.
THE COURT NOTES THAT:
A.The Court has been informed that the respondent supports the making of the annulment and the trustee has been informed and has no objection to the annulment.
B.A copy of these orders must be forwarded to the official receiver and the trustee forthwith.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These proceedings seeking a sequestration order were commenced on 5 April 2024. A Registrar of the Court made orders on 19 August 2024 making a sequestration order. The petitioning creditors’, through its solicitor, Mr Monaco, filed an affidavit in support of the annulment on 12 September 2024, identifying that the debt was paid in full by the respondent and was received on 19 August 2024.
The overlap with the appointment and the payment is obviously most unfortunate, but a proper course has been taken by the petitioning creditor in these circumstances. Had the true position been identified before the Registrar, the sequestration order clearly would not have been made.
In relation to the requirements of s 153B of the Bankruptcy Act1966 (Cth), the Court is satisfied that the sequestration order ought not to have been made. The Court is satisfied that this is an appropriate case in which the petitioning creditor has moved with urgency to vacate the sequestration order which was entirely inappropriate.
The Court raised, by correspondence with the petitioning creditors’ legal representatives, the need to ensure identification of the position of the trustee and that of the respondent. Mr Monaco, a legal practitioner who is also the deponent of the affidavit dated 12 September 2024, has informed the Court and the Court accepts, that the trustee is supportive of the application and has been informed of the same and that a similar position has been taken by the respondent.
In all the circumstances, the Court is not satisfied that it is necessary to require any further evidence in respect of that obvious position. The position taken by the trustee is entirely reasonable in those circumstances, and there is no need for any other order to protect the interests of the trustee in respect to the consequences of the annulment, and it is obvious that the respondent would wish to have the sequestration order set aside.
It is for these reasons the Court makes the above orders.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 23 September 2024
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