Re Church, A.J. t/a Aardwork Plumbing & Handyman Services v Ex parte The Master Plumbers Apprentices Ltd

[1994] FCA 644

~ Y Y 99-

JUDGMENT No. ..... ...-../ ..,...-

IN THE FEDERAL COURT OF AUSTRALU	)
j
) NO. NB 1931 of 1994
OF NEW SOUTH WALES	)

Re :  ALLAN JOHN CHURCH. t/a IIBBPI?ZeBII
PLUMBING & HANDYMAN SERVICES

Debtor

Ex parte:  THE MASTER PLUMBERS APPRENTICES
LIMITED

Creditor

26 August 1994

REASONS FOR JUDGMENT

-

This is an application to review the decision of a registrar of the Court made on 22 August 1994 ordering that a sequestration order be made against the estate of Mr Allan John Church together with the usual orders as to costs. The application is made pursuant to S. 31A(6) of the Bankruptcy Act 1966.

The sequestration order was made in the following

REOISTR~

circumstances. The petition had been served upon Mr Church at

a date which, so far as the evidence of service before the

registrar was concerned, was Monday, 18 July. The papers were in order. There was no appearance by or on behalf of Mr Church; so the sequestration order was pronounced in the usual course.

14 SEP 1994

~ D E R A L COLI,

AUSTRALIP
PRINCIPAI

Mr Church has given evidence by affidavit that although he had been served with the petition, and I should add he disputes the date of service (but nothing turns on that for present purposes) he assumed that it had been adjourned as indeed it had been. However, he says that he did not know of the adjourned date until 23 August, the day after the making of a sequestration order, when he collected a letter from his local post office which had been sent by certified mail, by or on behalf of the petitioning creditor. Having learned that the petition had already been heard the day before, he then sought legal advice and hence the application was made promptly.

The solicitor for the petitioning creditor had in fact, in accordance with the registrar's directions, sent a letter to Mr Church by certified mail well before the adjourned date of the hearing of the petition. It appears from the evidence that the certified mail letter arrived at Mr Church's local

post office on 12 August, but he did not pick it up until 23 August. The solicitor for the petitioning creditor also	took the precaution of sending, again with ample time before
the adjourned date of the hearing of the petition, a letter by ordinary mail addressed to the debtor himself.
There are certain unsatisfactory features of thie case concerning the evidence of Mr Church about these matters, but I will say nothing further about it because nothing turns on it for present purposes. Mr Church wishes to dispute the debt that underlies the bankruptcy petition and the bankruptcy notice upon non-compliance with which the act of bankruptcy is founded. It has been the subject of proceedings in the Local Court and all I can say is Mr Church does not appear to have attempted to set aside that judgment expeditiously or with any diligence. He may or may not in fact be indebted to the petitioning creditor; I have no knowledge of that one way or the other and say nothing about it.
I think in all the circumstances the just thing to do is to set aside the sequestration order and the order for costs that was made on 22 August, so that Mr Church may have a chance to challenge the petition in the usual way.

Accordingly, the Court orders that:

1. The sequestration order made by a registrar against the aside; estate of Allan John Church on 22 August 1994 be set

2. The order for costs made on 22 August be also set aside;

3.   The petition be restored to the list to be returnable before a registrar on Tuesday, 6 September 1994 at 9.15am.

4 .    Mr Church shall file and serve a notice of intention to appear in which he must set out in detail the grounds of his assertion that he is not indebted to the petitioning creditor. He must also file and serve an affidavit, or affidavits, setting forth fully his case in that he is not indebted to the petitioning creditor, and an affidavit or affidavits setting out full details of his assets, liabilities, income and expenditure. The said affidavit or affidavits to be filed and served not later than Friday, 2 September 1994 ;

5.   Mr Church pay the costs of the petltlonlng creditor of the application which is before the Court today.

I certify that this and the

preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Associate g

:  26 August 1 9 9 4

Counsel for the Debtor	:	Mr P C Gerber
Counsel for the Creditor	Mr G Miles

Solicitors for the Creditor :	Milne Berry & Berger
Date of Hearing	26 August 1 9 9 4
Date of Judgment	26 August 1 9 9 4