Pioneer Credit Acquisition Services Pty Ltd v Hayes

[2018] FCCA 3144

FEDERAL CIRCUIT COURT OF AUSTRALIA

PIONEER CREDIT ACQUISITION SERVICES PTY LTD v HAYES [2018] FCCA 3144

Catchwords:
BANKRUPTCY – Creditor’s petition – application for a sequestration order – Court satisfied on the evidence that an act of bankruptcy occurred – no substance in scandalous claims of judgment debtor – matters required to be established under section 43 of the Bankruptcy Act 1966 so established – sequestration order made.

Legislation:

Bankruptcy Act 1966 (Cth), ss.27, 40(1)(g)

Federal Circuit Court (Bankruptcy) Rules 2016 (Cth)

Applicant: PIONEER CREDIT ACQUISITION SERVICES PTY LTD

Respondent: BRETT JOHN HAYES

File Number: BRG 762 of 2015

Judgment of: Judge Egan

Hearing date: 31 October 2018

Date of Last Submission: 5 November 2018

Delivered at: Brisbane

Delivered on: 5 November 2018

REPRESENTATION

Counsel for the Applicant: Mr Messina

Solicitors for the Applicant: Sphere Legal

Respondent: Self represented

THE COURT ORDERS ON A FINAL BASIS THAT:

1. A sequestration order is made against the estate of Brett John Hayes.

2. The Petitioning Creditor’s costs be paid out of the bankrupt’s estate in accordance with the priority to which it is entitled as agreed or taxed in accordance with the Bankruptcy Act 1966 (Cth).

THE COURT NOTES THAT:

A.The date of the act of bankruptcy of the respondent is 21 August 2015.

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

1. Before the Court was the hearing of a creditor’s petition filed on behalf of the applicant, Pioneer Credit Acquisition Services Pty Ltd, against the respondent, Brett John Hayes. At the outset, it is noted that the claim against the respondent arises out of the assignment to the applicant of debts owed previously by the respondent to the Commonwealth Bank of Australia (“CBA”).

2. The creditor’s petition was filed on 25 August 2015 and 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) (“the Act”).

3. The proceeding was heard on 31 October 2018 on a final basis. At that time, affidavit evidence was read establishing proof of service of the bankruptcy notice, proof of service of the creditor’s petition, verification of the creditor’s petition, verification of the debt remaining outstanding (in the amount of $62,556.63) and a current search in respect of the status of the applicant in accordance with the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) (“the Bankruptcy Rules”).

4. The respondent filed an affidavit on 30 October 2018 by which he relied upon a number of affidavits, a chronology, a cross-claim filed by him on 23 September 2015, in addition to that affidavit of 30 October 2018. The respondent, by paragraph 1 of the affidavit of 30 October 2018, under the heading “Presentments of Brett John Hayes”, swore “Applicants by their actions have fatally compromised any claim.”

5. Under the heading “Reasons” in such 30 October 2018 affidavit, the respondent then set out, in 183 numbered paragraphs, the bases upon which he asserted that the actions taken by the petitioning creditor against him were either impermissible, fraudulent or unlawful. Some of those paragraphs are scandalous. The respondent further sought to re-ventilate arguments which had earlier been rejected in court appeal proceedings.  It is suffice to point to the following paragraphs for an indication of the nature of the respondent’s assertions:

   a)Paragraph 9 – assertion that no credit contract giving rise to any payment obligation had ever been shown to him.

   b)Paragraph 20 – allegation of fraud on part of CBA relating to assignment of debt

   c)Paragraph 24 – allegations of dishonesty and deceit on the part of CBA

   d)Paragraph 66 – assertion that provisions of Uniform Civil Procedure Rules 1999 (Qld) were inconsistent with the provisions of s. 109 of Commonwealth Constitution and therefore invalid.

   e)Paragraph 74 – assertion that the plaintiff knew that the respondent asserted that UCPR was invalid “where a man stands at court”.

   f)Paragraph 80 – assertion that one Wendy Chen (when swearing affidavit on behalf of the applicant) is liable to be charged pursuant to the provisions of s.35 of the Crimes Act 1914 (Cth).

   g)Paragraph 85 – assertion that named directors of the applicant are likewise “liable for criminal charges

6. The respondent then summarised in such affidavit his contentions, in 36 paragraphs, under the heading “Summary”. Relevantly, at paragraph 11, the respondent swore “I have never said that I will not pay, just that I will not pay just because someone says so”.

7. The other affidavits and documentation relied upon by the respondent, as set out in his affidavit of 30 October 2018, do not advance the respondent’s case. The affidavit of debt of Elle Cook sworn on 30 October 2018 and filed at the hearing on 31 October 2018 by leave, without objection on the part of the respondent, disclosed that the amount of the debt remaining due and owing by the respondent to the applicant was in the amount of $62,556.00.

8. The respondent’s allegations to the effect that the judgment obtained against him in the Magistrates Court at Southport was invalid or of no effect were baseless. An appeal against the entry of that judgment was dismissed and an application to set aside such judgment was also dismissed.  The judgment stands as a binding and enforceable judgment of a court.

9. The respondent has not demonstrated that he has any arguable counterclaim/cross-claim against either the applicant or CBA which would justify the court going behind the judgment entered against the respondent in the Magistrates Court at Southport.

10. The court finds that the act of bankruptcy occurred on 21 August 2015. The evidence establishes that the respondent had failed to pay the debt then owed to the applicant by that date, that being a time more than twenty-one (21) days after the service upon the respondent of the bankruptcy notice on 30 July 2015. The act of bankruptcy was therefore deemed to have been committed pursuant to the provisions of s. 40(1)(g) of the Act. The respondent was at that time, and remains, unable to pay his debts as and when they fall due for payment.

11. During the course of the hearing the respondent made lengthy oral submissions on his own behalf. He was articulate and well versed in making submissions to the court about the matters relied upon by him as set out in the affidavit material filed on his behalf. He demonstrated that he was well able to put forward his own argument throughout the course of the hearing, notwithstanding that he had earlier been refused a request for some other legally unqualified person to assist him in such tasks.

12. The court is satisfied that the bankruptcy notice was validly served and that the creditor’s petition was brought within the relevant time. The court is further satisfied that there are no grounds upon which a sequestration order ought not to be made.

13. Accordingly, a sequestration order is made against the estate of Brett John Hayes.

14. The costs of and incidental to the proceeding should follow the event.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  5 November 2018