QBE v HODDER

[2005] FMCA 1419

FEDERAL MAGISTRATES COURT OF AUSTRALIA

QBE v HODDER [2005] FMCA 1419

BANKRUPTCY – Application to rescind an order of the registrar that dismissed the creditor’s petition – where the petition is taken out by the applicant creditor against the respondent debtor – where the petition was dismissed on condition that the respondent debtor make effective payment of the amount claimed in the petition – where this has not occurred – whether in these circumstances the court should exercise its power to rescind an order dismissing an application for a sequestration order.

Bankruptcy Act 1966, s.37

Applicant: QBE WORKERS COMPENSATION (NSW) LIMITED
(ACN 003 195 604)

Respondent: MELISSA HODDER

File Number: SYG 513 of 2005

Judgment of: Raphael FM

Hearing date: 30 August 2005

Date of Last Submission: 30 August 2005

Delivered at: Sydney

Delivered on: 30 August 2005

REPRESENTATION

Solicitors for the Applicant: Jones King Lawyers

ORDERS

1. Orders made in accordance with the interim or procedural orders sought in the application dated 15 June 2005, being procedural orders 1, 2, 3, and 5.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 513 of 2005

QBE WORKERS COMPENSATION (NSW) LIMITED
(ACN 003 195 604)

Applicant

And

MELISSA HODDER

Respondent

REASONS FOR JUDGMENT

1. In this matter, I am asked to make an order under s.37 of the Bankruptcy Act 1966 rescinding an order made by consent on 30 April 2005 by Registrar Tesoriero, dismissing a creditor’s petition taken out by the applicant creditor against the respondent debtor. 

2. The facts of the matter are contained in an affidavit of Millie Teh, dated 27 May 2005, filed on 15 June 2005, and can also be seen from a further affidavit of Dean Bosman dated 30 August 2005.  The terms upon which the petition was dismissed appear to be that a cheque or cheques were paid to the applicant creditor.  Unfortunately, the cheques were not met and it would appear from orders that have been made in this Court by the registrars that considerable time was given to the respondent debtor to make effective payment of the amount claimed in the petition.  That has not happened. 

3. Although the Court has no power to rescind or discharge or suspend the operation of the sequestration order under s.37, it does have the power to rescind an order dismissing an application for a sequestration order. The power of recision has to be exercised with caution and can not be made ex parte. The respondent debtor did have notice of this hearing. In any event, this hearing is not intended to pronounce a sequestration order against the debtor, merely to revive the petition that was already in existence. That petition will have to be held in the normal course. I make orders in accordance with the interim or procedural orders sought in the application dated 15 June 2005, being procedural orders 1, 2, 3, and 5.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: