Re Minuzzo, J.E.

[1991] FCA 637

IN THE FEDERRL COURT OF AUSTRALIA	)
GENERAL DIVISION	1
BANKRUPTCY DISTRICT OF THE	) No. QP 2086 of 1990
STATE OF OUEENSLAND	1

RE:	JOHN ENZO MINUZZO
EX PARTE:	ADVANCE COMMERCIAL FINANCE LIMITED

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	17 APRIL  1 9 9 1
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    The notice of intention to oppose be struck out.

2.   A sequestration order be made in respect of the

estate of the debtor, John Enzo Minuzzo.

3.   The petitioning creditor's costs of and incidental to these proceedings, including the costs of the application to strike out the notice of intention to oppose, be taxed and paid in accordance with the Bankruvtcv Act 1966.

NOTE :	Settlement and entry of orders is dealt with in Rule
124 of the Bankruptcy Rules.
IN THE FEDERAL COURT OF AUSTRALIA	1
GENERAL DIVISION	)
BANKRUPTCY DISTRICT OF THE	1  No. QP 2086 of 1990
STATE OF OUEENSLAND	)

RE:	JOHN ENZO MINUZZO
EX PARTE:	ADVANCE COMMERCIAL FINANCE LIMITED

CORAM: PINCUS J.

PLACE: BRISBANE

DATE: 17 APRIL 1991

EX TEMPORE REASONS FOR JUDGMENT

In this matter there was a creditor's petition based upon the judgment of the Supreme Court of Queensland in a sum of $650,000 plus certain interest, that judgment having been entered on 3 September 1990. The evidence shows that at times subsequent to that, late last year and early this year, the debtor has been in Europe attempting to raise finance.

There have been mentions in the correspondence of

finance becoming available at particular times but nothing has

appear for the debtor today, has nothing further to add. It	eventuated, and Mr. Schmidt, who has been good enough to
seems a reasonable inference that the finance sought has not become available. The debtor, on the basis that he proposed to file material to oppose the making of a sequestration order, obtained leave to file out of time a notice of intention to oppose the petition and that has been set down
for hearing.
The creditor applies today to strike out the notice of intention to oppose and I think I should do that. The reasons are two. First, the order giving leave stipulated that material in support of the debtor's case should be filed by 5 April and none has been filed. The matter was before the Court yesterday and today and it appears unlikely that there was any intention to comply with that order, on the part of the debtor. It is not stated where he is or what his proposals are.
The second reason why, in the exercise of my discretion, I propose to strike the notice of intention out is that it is based upon the circumstance that a property is being sold, it is said, at an under value. The evidence is that a conditional contract for sale was made and that the land the subject of the contract is owned by a company which is principal debtor in respect of the same debt as is mentioned above - that is, the debtor, Mr. Minuzzo, is a guarantor of that debt.
The notice of intention to oppose appears to have been designed to resist the making of a sequestration order on the ground that if the sale goes through it would constitute a sale at an under value. It seems to me clear that that is no ground of resistance. Apart from any other difficulty, the suggestion that this debtor has suffered damage at the present stage is plainly incorrect. He could only suffer any loss if an actual sale occurred, and there is no evidence to suggest that.
More generally, the papers disclose a pattern which I am afraid, in these bad economic times, may begin to be !

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rather common.	That is, a person who was in a substantial way	1 .
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of business finds himself unable to pay a debt and, as I	I
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infer, has difficulty even financing these court proceedings:	I
no explanation has been advanced for the failure to comply	.  ,
with the Court's direction as to filing of material, nor is
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there any suggestion that any is to be filed.	I:  . .
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The papers appear to be otherwise in order and I :_

propose to make a sequestration order. I find the act of

bankruptcy alleged in the petition. I am satisfied of the

truth of the other allegations in the petition necessary to

found a sequestration order. I make a sequestration order in	I
respect of the estate of the debtor, Mr. Minuzzo, and I order	t
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that the costs of and incidental to these proceedings incurred	I.
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by the petitioning creditor be taxed and paid in accordance	i
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with the Act.	I should add that those costs will include the	i
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costs of the application to strike out the notice of intention	I
to oppose. It will also be ordered, as I have mentioned, that the notice of intention to oppose be struck out.	I -
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I certify that this and the	!
two preceding pages are a
true copy of the reasons	1
for judgment herein of his	. C ,
Honour Mr. Justice Pincus.	l- ,

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Associate Date 17 Ayil 1111 1