Proprietors of Strata Plan Number 3102 v Gardiner-Jones

[2000] FCA 738

FEDERAL COURT OF AUSTRALIA

Proprietors of Strata Plan Number 3102 v Gardiner-Jones [2000] FCA 738

THE PROPRIETORS OF STRATA PLAN NUMBER 3102 (ALSO KNOWN AS THE OWNERS OF STRATA PLAN NUMBER 3102) v GARDENER-JONES N P (ALSO KNOWN AS NORMA PHYLLIS GARDINER-JONES) (IN THE MATTER OF GARDINER-JONES N P)

N 7079 OF 2000

MOORE J
25 MAY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7079 OF 2000

BETWEEN:	THE PROPRIETORS OF STRATA PLAN NUMBER 3102 (ALSO KNOWN AS THE OWNERS OF STRATA PLAN NUMBER 3102) APPLICANT
AND:	GARDENER-JONES N P (ALSO KNOWN AS NORMA PHYLLIS GARDINER-JONES) RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	25 MAY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   A sequestration order be made against the estate of Gardener-Jones N P (also known as Norma Phyllis Gardiner-Jones).

2.   The applicant creditor’s costs (including reserved costs, if any) be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7079 OF 2000

BETWEEN:	THE PROPRIETORS OF STRATA PLAN NUMBER 3102 (ALSO KNOWN AS THE OWNERS OF STRATA PLAN NUMBER 3102) APPLICANT
AND:	GARDENER-JONES N P (ALSO KNOWN AS NORMA PHYLLIS GARDINER-JONES) RESPONDENT

JUDGE:	MOORE J
DATE:	25 MAY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I am presently dealing with a creditor’s petition filed by the Proprietors of Strata Plan Number 3102 (“the judgment creditor”) seeking a sequestration order against Norma Phyllis Gardiner-Jones, or Gardener-Jones N P, based on the failure of Ms Gardiner-Jones to comply with a bankruptcy notice served on her on 3 August 1999, the bankruptcy notice having issued on 15 April 1999.

2. The bankruptcy notice was based on a judgment entered in favour of the judgment creditor on 9 July 1998 in the sum of $8622.77 which represented, I apprehend, outstanding strata levies payable by Ms Gardiner-Jones to the judgment creditor concerning a building in which she owns a unit which is her home.  That is a matter I will return to later.

3. Mr Charles, solicitor for the judgment creditor, has taken me through the material upon which he relies. I am satisfied that the documents that are required to be served on Ms Gardiner-Jones have been served and I am otherwise satisfied as to the various matters I must be satisfied about under s 52 of the Bankruptcy Act 1966 (Cth). Accordingly, I have reached a point where the judgment creditor has established grounds for the making of a sequestration order.

4. When the matter was last before me, I made it plain to Ms Gardiner-Jones that these proceedings, potentially for her, had serious consequences including, potentially, the sale of the unit which is her home but which is also the indirect source of the judgment debt arising from the Local Court proceedings.  I then invited Ms Gardiner-Jones to seek legal assistance, a step apparently she has not taken.  I also indicated to her that she may wish to put on material for the next occasion, that is today, raising matters that might be relevant to whether a sequestration order should be made.  She has not appeared today, though she was informed by my Associate that she should either appear or have someone appear on her behalf to provide some evidence to support a contention she made to my Associate that she had injured herself and was unable to attend.  Neither of these things has occurred.  The material that Ms Gardiner-Jones has put on between the time the matter was last before me and now, does nothing to disclose either the existence of any legitimate cross-claim or the like or to satisfy me that notwithstanding the act of bankruptcy arising from the failure to comply with the bankruptcy notice, she is solvent.

5. The court has a discretion that may be exercised in appropriate circumstances to not make a sequestration order.  In this case, the circumstances of Ms Gardiner-Jones cause me some concern.  It appears that she is either unwilling or unable, or both, to pay levies due to the judgment creditor concerning the property in which she lives.  I am not entirely satisfied that she understands the import of these proceedings though I have not reached a level of satisfaction that would move me to refrain from making a sequestration order.  However, the consequences of doing so potentially are serious for Ms Gardiner-Jones in the sense that there is the real possibility of her only or principal asset being sold to satisfy her debts with the result that she may be dispossessed of the unit which is presently her home.

6. All I can indicate publicly is that I hope, as Mr Charles suggests might occur, that her personal circumstances will be looked at with some care by her trustee when her estate comes to be administered as a consequence of the order I am about to make.

7. I make orders in accordance with the short minutes of order handed up by Mr Charles which I now initial.  In so doing I note that the act of bankruptcy occurred on 24 August 1999.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             25 May 2000

Solicitor/advocate for the applicant:	Mr H Charles
There was no appearance for the respondent.
Date of Hearing:	25 May 2000
Date of Judgment:	25 May 2000