Provident Capital Ltd v Hans Peter Mollinger

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PROVIDENT CAPITAL LTD v HANS PETER MOLLINGER [2009] FMCA 986

PRACTICE & PROCEDURE – BANKRUPTCY – Application by applicant creditor to substitute PCL Holdings Ltd (ACN 101 975 633) as applicant creditor – application not opposed – application granted to substitute applicant creditor.

Bankruptcy Act 1966 (Cth), ss.30, 49
Federal Magistrates Court Act 1999 (Cth), s.15
Federal Magistrates Court Rules 2001 (Cth), Pt 11, r.11.01, r.11.03, r.11.04

McNamara v Langford (1931) 45 CLR 267

Applicant: PROVIDENT CAPITAL LTD

Respondent: HANS PETER MOLLINGER

File Number: SYG 1491 of 2008

Judgment of: Lloyd-Jones FM

Hearing date: 2 October 2009

Delivered at: Sydney

Delivered on: 2 October 2009

REPRESENTATION

Counsel for the Applicant: Ms B Nolan

The Respondent: The respondent appeared in person.

ORDERS

1. The application filed by the applicant creditor on 16 September 2009, to substitute PCL Holdings Pty Ltd ACN 101 975 633 as applicant creditor, is allowed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1491 of 2008

PROVIDENT CAPITAL LTD

Applicant

And

HANS PETER MOLLINGER

Respondent

REASONS FOR JUDGMENT

1. This is an Application in a Case filed and presented on 16 September 2009 seeking the following orders:

   1. Pursuant to section 49 of the Bankruptcy Act 1966 (Cth) or in the alternative, pursuant to Part 11 of the Federal Magistrates Court Rules 2001, section 15 of the Federal Magistrates Court Act 1999 and section 30 of the Bankruptcy Act, PCL Holdings Pty Ltd ACN 101 975 633 be substituted as the applicant creditor in these proceedings.

   2. Each party bear their own costs of this motion.

   3. Any further or other orders that the Court deems fit.

2. The evidence supporting this application is contained in the affidavit of Michael Roger O’Sullivan sworn 16 September 2009 and filed on that date.  There is no objection to that affidavit and it was read into evidence.

3. Ms Nolan appearing for the applicant creditor stated that Provident Capital Ltd by deed of assignment assigned all its rights and interests entitling the security and the proceedings to a new entity which is PCL Holdings Pty Ltd, absolutely.  The affidavit of Michael Roger Sullivan at paragraph 3 states:

   3. By deed dated 29 July 2009 (“Deed of Assignment”) the Applicant [Provident Capital Ltd] assigned absolutely to PCL Holdings Pty Ltd ACN 101 975 633 (“PCLH”) all of its right, interests and title in:

   3.1 The loan agreement dated 28 March 2003 between the Applicant as lender and the respondent [Hans Peter Mollinger] and Jillian Mary Mollinger and Beau Joshua Mollinger jointly as borrower, as subsequently varied by deed on each 19 February 2004 and 26 May 2004;

   3.2 mortgage to the Applicant as mortgagee by the respondent and Jillian May Mollinger and Beau Joshua Mollinger jointly as mortgagor registered number 94938355 over the whole of the land in Certificate of Title folio identifier 3/SP76492 and known as unit 3,9 Seaview St, Ballina in the State of New South Wales; and

   3.3 These proceedings.

   5. On 29 July 2009 the Applicant…