Permanent Custodians Ltd v Burgess - [2010] FMCA 258

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Permanent Custodians Ltd v Burgess

Details

AGLC: Permanent Custodians Ltd v Burgess [2010] FMCA 258
Case: [2010] FMCA 258
Decision Date: 19 March 2010

CaseChat Overview and Summary

Permanent Custodians Limited sought a sequestration order against Narelle Susan Burgess, a dispute adjudicated by the Federal Circuit Court of Australia. The applicant, a creditor, sought to enforce payment of a debt owed by Burgess, which she failed to settle despite repeated demands and legal proceedings. The matter raised issues concerning the validity of the debt, the existence of an act of bankruptcy, and the appropriate remedy for the creditor. The Court was tasked with determining whether Burgess's financial situation warranted a declaration of bankruptcy and whether the applicant was entitled to the relief sought under the Bankruptcy Act 1966 (Cth).

In considering the application, the Court examined the evidence presented regarding the debt's legitimacy and the circumstances surrounding Burgess's financial affairs. It was established that Burgess had defaulted on her financial obligations, and the evidence supported the claim that she had committed an act of bankruptcy. The Court concluded that the creditor had met the necessary criteria to seek a sequestration order, and the application was substantiated. Consequently, the Court found that Burgess's estate should be subject to sequestration, and a sequestration order was granted. Additionally, the Court addressed the applicant's costs, directing that they be taxed and paid according to the statutory provisions.

The Court also addressed ancillary matters, such as the date of the act of bankruptcy, which was confirmed as 20 October 2009, and the appointment of a trustee. The Court acknowledged the consent of Scott Darren Pascoe to act as trustee, which had been lodged with the Official Receiver in Sydney. Furthermore, the Court imposed a stay on all proceedings under the sequestration order until 6 April 2010, as required by section 52(3) of the Bankruptcy Act 1966 (Cth). This decision concluded that the creditor's application for relief was well-founded and provided for the orderly administration of Burgess's estate under the provisions of the Act.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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