Permanent Custodians Ltd v Burgess
[2010] FMCA 258
•19 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PERMANENT CUSTODIANS LTD v BURGESS & ANOR | [2010] FMCA 258 |
| BANKRUPTCY – Creditors petition – application for adjournment – grounds of opposition – petition granted. |
| Bankruptcy Act 1966, s.52 |
| Applicant: | PERMANENT CUSTODIANS LTD |
| First Respondent: | RICHARD JOHN BURGESS |
| Second Respondent: | NARELLE SUSAN BURGESS |
| File Number: | SYG 2555 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 19 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Ms K Britton Gadens Lawyers |
The Second Respondent appeared in person
ORDERS
A sequestration order be made against the estate of Narelle Susan Burgess.
The applicant creditor’s costs, including reserved costs, if any, be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).
The Court notes that the date of the act of bankruptcy is 20 October 2009.
The Court notes that a Consent to Act as Trustee has been signed by Scott Darren Pascoe and has been lodged with the Official Receiver in Sydney.
Pursuant to s.52(3) of the Bankruptcy Act 1966 (Cth), all proceedings under the sequestration order be stayed until 6 April 2010.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
SYG 2555 of 2009
| PERMANENT CUSTODIANS LTD |
Applicant
And
| RICHARD JOHN BURGESS |
First Respondent
NARELLE SUSAN BURGESS
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an amended creditor’s petition, filed on 3 February 2010, seeking a sequestration order and other orders against the estate of Narelle Susan Burgess. The petition also sought those orders against the estate of Richard John Burgess. To that extent, it has been dealt with. A sequestration order and a costs order were made against Mr Burgess by Registrar Morgan on 24 February 2010. I am not aware of anything further being done by Mr Burgess in relation to that matter by way of review or appeal.
The amended petition is supported by the affidavit within it, verifying paragraphs 1, 2, 3 and 4. The petitioning creditor also relies upon a separate affidavit verifying paragraph 4, made on 22 October 2009 by Paul Anthony Higgins. The petitioning creditor further relies upon an affidavit of service of the bankruptcy notice made by Kris Sabatino on 30 August 2009. An affidavit of service of the amended creditor’s petition and other documents was made by Kris Sabatino on 14 February 2010, and affidavits of search and debt were made on 18 March 2010 by Ryan D’Souza and on 19 March 2010 by Kylie Maree Britton.
The background is that on 23 October 2008 judgment was obtained by the petitioning creditor against Mr and Mrs Burgess in the Supreme Court of New South Wales in proceedings 13432 of 2008. On 12 December 2008 a further judgment was obtained by the petitioning creditor against Mr and Mrs Burgess in Supreme Court proceedings 14030 of 2008. On 24 July 2009, bankruptcy notice number NN3279 of 2009 was issued by the Official Receiver to Mr and Mrs Burgess. The notice was served personally on them on 26 August 2009. On 16 September 2009, Mr and Mrs Burgess filed an application to set aside the bankruptcy notice. On the return date on 29 September 2009, the Court made orders for the filing of material and adjourned that proceeding until 20 October 2009. No evidence was filed by Mr and Mrs Burgess and on 20 October 2009 Registrar Segal dismissed the application. Mr and Mrs Burgess did not appear in court on that day. The petitioning creditor asserts that an act of bankruptcy was committed on that day.
A creditor’s petition was filed on 22 October 2009. On the same day, Mrs Burgess filed an application to review the decision of Registrar Segal made on 20 October 2009, dismissing the challenge to the bankruptcy notice. That application was listed before Raphael FM for directions on 3 November 2009. He made procedural orders. Evidence was not filed in response to those procedural orders.
On 2 February 2010, Raphael FM dismissed the review applications. Mr and Mrs Burgess did not appear in court on that day. On 3 February 2010, the creditor’s petition was amended by order of the Court and on 10 February 2010, the amended petition was served upon Mr and Mrs Burgess. On 23 February 2010, Mrs Burgess filed an interim application and affidavit seeking an adjournment. The matter came before me and I adjourned the interim application and the creditor’s petition until 2 March 2010. On that day I made orders for the filing of further material and adjourned the matter for hearing until today.
Today Mrs Burgess appeared in person and sought an adjournment for the purposes of obtaining legal representation. Having regard to the history of the proceedings, I refused that request because I did not think that further delay would be productive. I took into account a letter tendered by Mrs Burgess from June Wayne, a psychologist, dated 18 March 2010, which I accepted as an exhibit[1]. That letter refers to stress that Mrs Burgess is suffering but does not, on its face, point to a disability warranting an adjournment, or impairing Mrs Burgess’ capacity to conduct the proceedings on her own behalf.
[1] exhibit D1
I am satisfied on the basis of the material relied upon by Permanent Custodians that prima facie they are entitled to the making of a sequestration order against Mrs Burgess. Mrs Burgess filed in court by leave today a notice stating grounds of opposition to the petition and a supporting affidavit. In her grounds of opposition and submissions in support of it, Mrs Burgess says that she has been denied justice because she only recently found out about the possibility of pro bono assistance being made available. I note that when the matter was last before me on 2 March 2010, I declined an application for the Court to facilitate the provision of pro bono assistance because I did not consider that such assistance was warranted in the matter. I maintain that view.
Mrs Burgess also asserts that she has potential claims against the petitioning creditor and others in relation to the sale of three properties which, in Mrs Burgess’s view, were sold for substantially less than their true value. Mrs Burgess asserts fault on the part of the petitioning creditor, solicitors acting in relation to the sale, and a real estate agent acting in relation to the sale. It is not unusual for properties, in circumstances such as the present, where sales are, in effect, forced by secured creditors in possession, to be sold for less than they would fetch where there is a willing but not over anxious vendor. I am not persuaded that the concerns Mrs Burgess has support an argument that those concerns are a reason for the Court not to make a sequestration order. I am not persuaded that the grounds of opposition advanced by Mrs Burgess provide any reason for the Court not to make that order.
I am satisfied that Mrs Burgess committed the act of bankruptcy alleged in the petition. I am satisfied with the proof of the other matters of which s.52(1) of the Bankruptcy Act 1966 (Cth) requires proof. I note that the date of the act of bankruptcy is 20 October 2009. I further note that a consent to act as trustee has been signed by Scott Pascoe and has been lodged with the official receiver in Sydney.
I will make the orders sought in the petition.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date:
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