Re Pashkoff, Michael Charlton Ex Parte Westpac Banking Corporation
[1996] FCA 956
•7 NOVEMBER 1996
CATCHWORDS
BANKRUPTCY - Creditor's Petition - sequestration order made - no point of principle.
Bankruptcy Act 1966, s52(2)
NP 1615 of 1995
Re: MICHAEL CHARLTON PASHKOFF Ex Parte: WESTPAC BANKING CORPORATION
Moore J
Sydney
25 October 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NP 1615 of 1995
)
BANKRUPTCY DIVISION )
RE: MICHAEL CHARLTON PASHKOFF
Debtor
EX PARTE: WESTPAC BANKING CORPORATION
Petitioning Creditor
JUDGE: Moore J
PLACE: Sydney
DATE: 25 October 1996
ORDER OF THE COURT
THE COURT ORDERS THAT:
The Estate of Michael Charlton Pashkoff be sequestrated.
The petitioning creditor's costs (including reserved costs, if any) be taxed and paid in accordance with the Act.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NP 1615 of 1995
)
BANKRUPTCY DIVISION )
RE: MICHAEL CHARLTON PASHKOFF
Debtor
EX PARTE: WESTPAC BANKING CORPORATION
Petitioning Creditor
JUDGE: Moore J
PLACE: Sydney
DATE: 25 October 1996
EX TEMPORE REASONS FOR JUDGMENT
This is an application for an order sequestrating the estate of Mr Michael Charlton Pashkoff, arising from a creditor’s petition lodged by the Westpac Banking Corporation (“Westpac”).
On 16 November 1988, a default judgment was obtained against Pashkoff in the District Court of New South Wales by Westpac. On 12 January 1995, a bankruptcy notice issued demanding the payment of the judgment debt, including interest, in the sum of $68,338.72. An order for substituted service of the notice was made on 31 April 1995. Service of the notice was effected on 18 June 1995. So much is apparent from an affidavit of Geoffrey Richard Lane, sworn 19 June 1996. The bankruptcy notice was deemed to be served on Pashkoff on 22 June 1995.
The demand for payment in the notice was not satisfied. An act of bankruptcy was thereby committed on 6 July 1995.
On 1 September 1995 a creditor's petition was filed by Westpac and was served, pursuant to an order for substituted service of 2 February 1996, on 16 February 1996. The petition was deemed served on 24 February 1996. In accordance with s52(4)(a), I made an order on 28 August 1996 extending the time at which the petition would lapse to 31 January 1997.
An affidavit of Jean DiNucci, sworn 17 September 1996, states that no money had been paid to the Registrar or into the Court in respect of the judgment obtained by Westpac in the District Court by that date. An affidavit of Kevin Gerard Layt, Manager of Retail Asset Management of Westpac, affirmed 17 September 1996, states that Pashkoff owed the petitioner the sum of $71,009.22 at that date. This is the sum referred to in the petition. I am satisfied as to the matters referred to in s52(1) of the Bankruptcy Act 1966.
Pashkoff has appeared in person on a number of occasions when the matter has been before the Court. Pashkoff does not put in issue that he owes Westpac the amount stated in the petition. Paragraph nine of an affidavit of 17 September 1996, relied on in support of an application for an adjournment of the matter on that day, states:
“I have never disputed the amount that the Petitioner has claimed, nor have I ever checked their figures, I doubt very much that they would be in error.”
Section 52(2) of the Bankruptcy Act 1966 identifies grounds on which the Court may dismiss the petition of a creditor:
"If the Court is ... satisfied by the debtor —
(a)that he is able to pay his debts; or
(b)that for other sufficient cause a sequestration order ought not to be made, it may dismiss the petition."
At the hearing of the application on 17 September 1996, Pashkoff was not able to provide any cogent evidence that he was able to pay the debt to Westpac and otherwise pay his debts. Pashkoff said he expected to raise the money, by one of several methods that he outlined to the Court, by the end of October 1996. As earlier noted this petition was originally filed on 1 September 1995. During the course of proceedings in this matter, Pashkoff has been granted several adjournments to allow him time to obtain legal representation and/or satisfy the debt of the petitioning creditor. By the afternoon of 17 September 1996 Pashkoff had not obtained legal representation and I refused a further application for an adjournment and heard the submissions of Westpac. I then indicated I would give judgment on 25 October 1996.
I gave Pashkoff leave to apply on three days notice to have the matter relisted if he wished to make out a ground for opposing the petition. No such application has been made and the position remains that there is no credible evidence that Pashkoff
will be able to pay his debt to Westpac and otherwise pay his debts. An application was made today that the matter be adjourned and no judgment given. The evidence of Pashkoff relied upon was contained in an affidavit of 25 October 1996. It is, in many respects, repetitive of affidavits filed on earlier occasions. It does not indicate that Pashkoff can satisfy the debt due to Westpac. It does not disclose an evidentiary basis for not sequestrating the estate of Pashkoff. Nor does it, in my opinion, establish that the opportunity Pashkoff has had to obtain legal representation was inadequate.
I order that the estate of Michael Charlton Pashkoff be sequestrated. The petitioning creditor is entitled to its costs of the application. I order that the petitioning creditor's costs (including reserved costs, if any) be taxed and paid in accordance with the Act.
I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.
Associate: ........ ........ ......
Dated: 25 October 1996
APPEARANCES
Counsel for the Petitioning Creditor: Mr L.J.W. Aitken
Solicitor for the Petitioning Creditor: Minter Ellison
The Judgment Debtor appeared in person.
Dates of Hearing: 17 September 1996
Date of Judgment: 25 October 1996
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