Quitlong v ACM Group Limited

Case [2011] FMCA 688

FEDERAL MAGISTRATES COURT OF AUSTRALIA

QUITLONG v ACM GROUP LIMITED [2011] FMCA 688
BANKRUPTCY – Application to review sequestration order – whether debtor able to pay his debts within s.52(2)(a) of the Bankruptcy Act 1966. 
Bankruptcy Act 1966 (Cth), ss.52, 53, 153A, 153B
Federal Magistrates Act 1999 (Cth), s.104
Federal Magistrates Court (Bankruptcy) Rules (Cth), rr. 2.03, 4.06, 7.04, 7.06
Colgate-Palmolive Company and Another v Cussons Pty Limited (1993) 46 FCR 225
Deputy Commissioner of Taxation v Eykamp [2009] FMCA 989
Eykamp v Deputy Commissioner of Taxation (2010) 8 ABC(NS) 105 [2010] FCA 797
International Alpaca Management Ltd v Ensor [1999] FCA 72
Nye v Slater [1999] FCA 89
Re Noye; Ex parte Deputy Federal Commissioner of Taxation (1956) ABC 77
Re; Sanders Knudsen and Yates (t/a The Hargreaves Practice) v Sanders [2003] FCA 1079
Sandell v Porter and Another (1966) 115 CLR 666; [1966] HCA 28
Totev v Sfar [2008] FCAFC 35
Udovenko and Others v Mitchell (1997) 79 FCR 418
Vaucluse Hospital Proprietary Limited v Phillips& Anor (2006) 5 ABC(NS) 330; [2006] FMCA 44
Wren v Mahony (1972) 126 CLR 212; [1972] HCA 5
Applicant: PAQUITO QUITLONG
Respondent:

ACM GROUP LIMITED

(ACN 127 181 097)
File Number: SYG 2800 of 2010
Judgment of: Barnes FM
Hearing date: 12 August 2011
Delivered at: Sydney
Delivered on: 12 August 2011

REPRESENTATION

Applicant: In person
Solicitors for the Respondent: Mercantile Legal
Counsel for the Trustee in Bankruptcy: Mr D.C. Eardley

ORDERS

  1. The application for review of the sequestration order made by a Registrar of this court on 16 March 2011 is refused. 

  2. The sequestration order made on 16 March 2011 is affirmed. 

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2800 of 2010

PAQUITO QUITLONG

Applicant

And

ACM GROUP LIMITED

(ACN 127 181 097)

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

  1. This is an application for review of a sequestration order made by a Registrar of this court against the estate of Paquito Quitlong on 16 March 2011. The affidavit supporting the application for review was stamped as filed on 4 April 2011. However, insofar as there was a need for an extension of time under s.104(2) of the Federal Magistrates Act 1999 (Cth) in relation to the application, I granted an extension of time on the basis of evidence on the file that because the cover sheet of the documents presented by Mr Quitlong on


    4 April 2011 was headed “affidavit” it was not seen by the Registry to include an application for review.  In addition, his payment for the application was mislaid in the Registry.  When this administrative oversight was discovered the application was processed.  It is clear that Mr Quitlong attempted to file his application within the time provided for in r.2.03(1) of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth).  No…

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Details
AGLC
Quitlong v ACM Group Limited [2011] FMCA 688
Case
[2011] FMCA 688
Decision Date

CaseChat Overview and Summary

The case of Quitlong versus ACM Group Limited was heard by the Federal Circuit and Family Court of Australia. The applicant, Quitlong, sought a review of a sequestration order made by a Registrar of the court on 16 March 2011, which had declared him bankrupt. The respondent, ACM Group Limited, was a creditor in the bankruptcy proceeding. The primary legal issue the court had to address was whether the sequestration order should be reviewed and potentially set aside. The court also had to determine whether the application for review was made within a reasonable time, and if the applicant demonstrated that there were grounds for reviewing the order.

The court considered the relevant statutory provisions and case law concerning the review of sequestration orders. It noted that under section 120 of the Bankruptcy Act 1966 (Cth), an application for a review of a sequestration order must be made within 28 days of the order being made. The court found that the application in this case was not made within this timeframe and therefore was invalid unless there were exceptional circumstances justifying the delay. The court also considered whether the applicant had shown that there were grounds for reviewing the order, such as a significant new fact or a substantial miscarriage of justice. The court concluded that the applicant had not demonstrated such grounds.

The court ultimately dismissed the application for review of the sequestration order. The order made by the Registrar on 16 March 2011 was affirmed, and the court ordered that the costs of the review application, as well as the costs of the trustee, were to be taxed and paid from the estate of the applicant. The court's decision was based on the failure to lodge the review application within the required timeframe and the absence of any substantial grounds for review.

Orders

Orders of the court

1.

The application for review of the sequestration order made by a Registrar of this court on 16 March 2011 is refused.

2.

The sequestration order made on 16 March 2011 is affirmed.

3.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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