Pioneer Credit Acquisition Services Pty Ltd v Hayes
[2020] FCCA 252
•10 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PIONEER CREDIT ACQUISITION SERVICES PTY LTD v HAYES | [2020] FCCA 252 |
| Catchwords: BANKRUPTCY – Bankruptcy notice – creditor’s petition – Sequestration order – costs. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.27, 40(1)(g), 52 Federal Circuit Court (Bankruptcy) Rules 2006 (Cth) |
| Cases cited: Adams v Lambert [2006] FCA 623 Hayes v Pioneer Credit Acquisition Services Pty Ltd [2019] FCA 1260 Hayes v Pioneer Credit Acquisition Services Pty Ltd [2018] FCA 1113 Pioneer Credit Acquisition Services Pty Ltd v Hayes [2017] FCCA 2821 Pioneer Credit Acquisition Services Pty Ltd v Hayes [2016] FCCA 1261 |
| Applicant: | PIONEER CREDIT ACQUISITION SERVICES PTY LTD |
| Respondent: | BRETT JOHN HAYES |
| File Number: | BRG 762 of 2015 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 10 February 2020 |
| Date of Last Submission: | 10 February 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 10 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Messina |
| Solicitors for the Applicant: | Sphere Legal |
The Respondent appearing on his own behalf with the assistance of a Mackenzie Friend, Mr Welch.
ORDERS
Leave be granted for the Applicant to file and rely upon the Affidavit of Search of Elle Cook sworn on 10 February 2020 and the Affidavit of Debt of Elle Cook sworn on 10 February 2020.
The Application for adjournment sought by the Respondent is refused.
A sequestration order be made against the estate of BRETT JOHN HAYES.
The petitioning creditor’s costs of and incidental to the creditor’s petition be taxed and paid in accordance with the provision of the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 762 of 2015
| PIONEER CREDIT ACQUISITION SERVICES PTY LTD |
Applicant
And
| BRETT JOHN HAYES |
Respondent
REASONS FOR JUDGMENT
(Revised from Ex tempore)
Introduction
This matter has had a lengthy and somewhat convoluted history. It first came before this court on 16 May 2016 before His Honour Judge Vasta, when His Honour refused to make a sequestration order. See Pioneer Credit Acquisition Services Pty Ltd v Hayes [2016] FCCA 1261.
Following a successful appeal to the Federal Court by the Applicant, the matter came back before His Honour Judge Jarrett on 7 September 2017, when a sequestration order against the Respondent was made. See Pioneer Credit Acquisition Services Pty Ltd v Hayes [2017] FCCA 2821.
Following a further successful appeal to the Federal Court of Australia, by the Respondent, see Hayes v Pioneer Credit Acquisition Services Pty Ltd [2018] FCA 1113 per Rangiah J, the matter was again remitted to this court for further consideration.
On 31 October 2018 the matter came before His Honour Judge Egan. A sequestration order was made against the respondent and orders were made for the petitioning creditor’s costs to be paid out of the bankrupt’s estate in accordance with the prior priority to which it is entitled as agreed or taxed in accordance with the Bankruptcy Act 1966 (Cth). See Pioneer Credit Acquisition Services Pty Ltd v Hayes [2018] FCCA 3144.
Mr Hayes again appealed to the Federal Court of Australia. The matter again came before Rangiah J who, on 13 August 2019 again set aside this Court’s decision and remitted the matter back to be dealt with in accordance with His Honour’s orders. See Hayes v Pioneer credit Acquisition Services Pty Ltd [2019] FCA 1260.
The matter now comes before me for consideration.
Appearances
Mr Messina of Counsel appears for the Applicant, Pioneer Credit Acquisition Services Pty Ltd. Mr Hayes appears unrepresented but with the assistance of a Mackenzie friend, Mr Welch.
Evidence of the Applicant
Before the Court, was a Creditor’s Petition filed on behalf of the Applicant against the Respondent. It is again to be noted that the claim arises against the Respondent out of the assignment to the Applicant of debts previously owed by the Respondent to the Commonwealth Bank of Australia.
Affidavit evidence was read to the Court establishing proof of service of the Bankruptcy Notice, Proof of Service of the Creditor’s Petition, verification of the Creditor’s Petition, and fresh affidavits sworn by Elle Cook on 10 February 2020, verifying the debt remaining outstanding in the amount of $62,556.63 plus interest and costs and a current search of the National Personal Insolvency Index in respect of the status of the Respondent in accordance with the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth).
Evidence of the Respondent
The Respondent filed a document labelled a ‘Presentment’ dated 3 December 2019 in which he relied upon a large number of documents including a chronology, a cross claim filed by him on 23 September 2015 and other material. As in previous hearings, the Respondent set out the basis upon which he asserted that the actions taken by the Applicant in relation to the alleged debt owing by him are either impermissible, fraudulent or unlawful. He again sought to re-ventilate arguments which had been earlier rejected in Court appeal proceedings. It is sufficient to summarise his allegations as follows - he denies the validity of the judgement debt obtained against him at Southport Magistrates Court on 7 May 2015. He alleges it was obtained improperly and that he was denied procedural fairness by that Court.
Consideration
During the course of the hearing the Respondent made an application for an adjournment of these proceedings to enable him to commence further action in the Southport Magistrates Court in relation to the judgement debt. Given the fact that I was advised that an appeal to the Queensland District Court against the judgement debt has been dismissed and that that these proceedings are now some 5 years old, I was not satisfied that it was in the interests of justice to adjourn the matter. Accordingly, the application for an adjournment was refused.
The creditor’s petition was filed on 25 August 2015. I am satisfied it is within the Court’s jurisdiction to hear and determine this application pursuant to the provisions of s.27 of the Bankruptcy Act 1966 (Cth). I am satisfied that, notwithstanding the creditors petition was filed or presented more than 12 months ago, it is still valid by reason of s.52(2) and (4) the Bankruptcy Act 1966 (Cth). I also note the decision of Giles J in Adams v Lambert [2006] FCA 623 at [6-10] which confirms in the current circumstances the petition is still valid
I am satisfied that the judgement debt in the sum of $62,556.63 plus interest and costs obtained against the Respondent at the Southport Magistrates Court remains binding and enforceable. The Respondent’s assertions that the judgement obtained against him was invalid or of no effect have no merit. An appeal against the entry of the judgement was dismissed. An application to set aside the judgement was also dismissed. I am not satisfied that there is any proper basis upon which this Court should seek to go behind the judgement entered against the Respondent at the Magistrate’s Court in Southport.
I am satisfied that the Respondent committed an act of bankruptcy pursuant to s.40(1)(g) of the Bankruptcy Act 1966 (Cth), on 20 Aug 2015 when he failed to pay a debt owed within 21 days post the service of a Bankruptcy Notice on 30 July 2015
I am satisfied of all of the other formal requirements which I need to be satisfied of under s.52 of the Bankruptcy Act 1966 (Cth) have been met. I am also satisfied there are no grounds upon which a sequestration order ought not be made. The Respondent remains unable to pay his debts as and when they full due for payment.
Accordingly, I order that a sequestration order is made against the estate of Brett John Hayes.
I also order that the petitioning creditor’s costs of and incidental to the creditor’s petition be taxed and paid in accordance with the provisions of the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth).
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Date: 10 February 2020
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