QBE Insurance (Australia) Ltd v ALAM

[2018] FCCA 691

FEDERAL CIRCUIT COURT OF AUSTRALIA

QBE INSURANCE (AUSTRALIA) LTD v ALAM & ORS [2018] FCCA 691

Catchwords:
BANKRUPTCY – Application for sequestration orders against the first, second and third applications – petitioning creditor established the grounds for the making of a sequestration order under s 52 of the Bankruptcy Act 1966 (Cth) – sequestration order made against each respondent.

Legislation:

Bankruptcy Act 1966, ss.43, 52

Federal Circuit Court Rules 2001, r.13.03C(1)(e)

Petitioning Creditor: QBE INSURANCE (AUSTRALIA) LTD (ACN 003 191 035)

First Respondent: MUHAMMAD ALAM

Second Respondent: SABIQA SATTAR

Third Respondent: QAMAR JAHAN SATTAR

File Number: SYG 2595 of 2017

Judgment of: Judge Street

Hearing date: 22 March 2018

Date of Last Submission: 22 March 2018

Delivered at: Sydney

Delivered on: 22 March 2018

REPRESENTATION

Solicitors for the Petitioning Creditor:

Solicitors for the Supporting Creditor:

Mr M Webeck
HWL Ebsworth Lawyers

Mr A Tanna
Holman Webb Lawyers

The first respondent appeared in person.

The third respondent appeared in person.

ORDERS

1. The proceedings against the second respondent are to proceed under r 13.03C(1)(e) of the Federal Circuit Court Rules2001.

2. A sequestration order is made against the estate of Muhammad Alam.

3. A sequestration order is made against the estate of Sabiqa Sattar.

4. A sequestration order is made against the estate of Qamar Jahan Sattar.

5. The petitioning creditor’s costs fixed in the amount of $8,813.40 be paid out of the bankrupt estates of the first, second, and third respondents and have the priority to which they are entitled.

THE COURT NOTES THAT:

1. The act of bankruptcy by the first respondent occurred on 13 June 2017.

2. The act of bankruptcy of the second respondent occurred on 13 June 2017.

3. The act of bankruptcy of the third respondent occurred on 25 June 2017.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2595 of 2017

QBE INSURANCE (AUSTRALIA) LTD (ACN 003 191 035)

Petitioning Creditor

And

MUHAMMAD ALAM

First Respondent

SABIQA SATTAR

Second Respondent

QAMAR JAHAN SATTAR
Third Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction for sequestration orders against three respondents arising out of a District Court judgment entered on 16 December 2016 against all three respondents in amounts totalling $141,470.97. The petitioning creditor has moved for a sequestration order against all three respondents.

2. The first and third respondents have appeared. The second respondent is at home and has not come to Court. I am satisfied the second respondent was aware of the hearing date and that this is an appropriate matter in which to exercise the Court’s powers under r 13.03C(1)(e) of the Federal Circuit Court Rules 2001, to proceed with the hearing against the second respondent.

3. The petitioning creditor has read affidavits in support of the service of the bankruptcy notice upon each of the three respondents, service of the creditor’s petition on each of the three respondents, has read an affidavit of debt, an affidavit of search, and the creditor’s petition was verified in relation to paragraphs 1 to 4, which was served on the respective respondents.

4. I am satisfied on the material before the Court that the first respondent committed an act of bankruptcy on 13 June 2017 and that the first respondent was within the jurisdiction at that time. I am satisfied that the second respondent has committed an act of bankruptcy on 13 June 2017 and the second respondent was within the jurisdiction at that time. I am satisfied that the third respondent has committed an act of bankruptcy on 25 June 2017.

5. I am satisfied the petitioning creditor has established the matters required for the making of a sequestration order under s 43 of the Bankruptcy Act 1966 (Cth) (“the Act”) and that the petitioning creditor has established the grounds for the making of a sequestration order under s 52 of the Act. The third respondent is also the subject of a supporting creditor who is before the Court.

6. The first and third respondents in the course of the hearing asked for an adjournment on the basis that they were awaiting material from the DPP. The material from the DPP could not give rise to any basis upon which the judgment that had been obtained in the District Court appears to be impeached or is able to be set aside. Whatever steps the first and third respondent and/or second respondent were taking in relation to the DPP is not something that gives rise to a proper basis upon which these proceedings should be adjourned.  Bankruptcy proceedings are ones which, under the legislation, must be expeditiously dealt with.

7. The first and third respondents also complained that they had only just received material in relation to the sequestration proceedings. These proceedings were commenced on 16 August 2017 and were before the Registrar on five occasions and Court is satisfied that the affidavit material relied upon by the petitioning creditor had been provided to the respondents. No proper basis for an adjournment was identified by the first or third respondents, and the Court is not satisfied that an adjournment is warranted in the interests of the administration of justice. For these reasons the adjournment was refused.

8. From the bar table, the third respondent maintained that she should not have been joined as a tutor in the proceedings giving rise to the judgment debt. No steps have been taken by the third respondent to seek to have the judgment set aside. Nothing said by the third respondent identified any proper basis upon which this Court could go behind the judgment obtained in the District Court of New South Wales.

9. The third respondent was of the view that she had not consented to act as a tutor and took issue with her liability. Under the order made by the District Court, the District Court order does identify the third respondent as being the tutor for the second respondent. Material has been read before the Court on behalf of the first and third respondents stating that the second respondent is not the subject of any disability that would prevent her being able to handle her own affairs.

10. There is no evidence before the Court, for the purposes of these proceedings that the second respondent was not able to participate in the proceedings if she chose to do so. On the face of the material before the Court, the order and judgment given in the proceedings in the District Court had not been the subject of any step to have the same set aside. The Court is satisfied that the petitioning creditor is entitled to the making of a sequestration order.

11. Nothing said by the first or third respondents established sufficient cause as to why a sequestration order should not be made. I am satisfied that the first, second and third respondents are unable to pay their debts as and when they fall due.

12. I am also satisfied that other sufficient cause has not been established by the second respondent why a sequestration order should not be made. I am satisfied that this is an appropriate matter in which to make a sequestration order against each respondent.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  16 April 2018