Roads Corporation v Love

[2016] FCA 38

FEDERAL COURT OF AUSTRALIA

Roads Corporation v Love [2016] FCA 38

File number:

VID 258 of 2014

Judge:

PAGONE J

Date of judgment:

3 February 2016

Catchwords:

BANKRUPTCY – sequestration order – proof of matters at hearing of creditor’s petition – discretion to make sequestration order – discretion to dismiss petition – circumstances of debtor relevant to whether sequestration order should be made

Legislation:

Bankruptcy Act 1966 (Cth) ss 52(1), 52(2)

Cases cited:

Cain v Whyte (1933) 48 CLR 639

Meinhardt (Hong Kong) Ltd v William Lindsay Meinhardt (deceased) (No 2) [2006] FCA 1323

Russell v Polites Investments Pty Ltd [2012] FCA 11

Totev v Sfar [2006] FCA 470

Xu v Wan Ze Property Development (Aust) Pty Ltd (in liquidation) [2014] FCA 461

Date of hearing:

28 January 2016

Registry:

Victoria

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

9

Counsel for the Applicant:

Mr P Fary

Solicitor for the Applicant:

Garland Hawthorn Brahe Lawyers

Counsel for the Respondent:

Mr T Alexander

Solicitor for the Respondent:

Macpherson Kelley

ORDERS

VID 258 of 2014

BETWEEN:

ROADS CORPORATION

Applicant

AND:

THOMAS JAMES LOVE

Respondent

JUDGE:	PAGONE J
DATE OF ORDER:	3 FEBRUARY 2016

THE COURT ORDERS THAT:

1.A sequestration order be made against the estate of Thomas James Love.

2.The applicant's costs, including reserved costs, be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).

THE COURT NOTES THAT:

1.The date of the act of bankruptcy is 6 May 2014.

2.A consent to act as trustee has been signed by Paul Andrew Burness and Matthew James Jess.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PAGONE J:

1. Roads Corporation applied on 9 May 2014 for a sequestration order against the estate of Mr Thomas James Love.  The hearing of the application was delayed in part because there were outstanding proceedings that might have affected the application, but in larger part because of Mr Love’s deteriorating health which required frequent treatment that made it difficult for him to prepare for, or to attend, hearings.  Mr Love was unrepresented in all but the last directions hearing and at the trial of the application.  Counsel appearing for Mr Love at the last directions hearing before the trial successfully sought an adjournment of the hearing to enable those then retained to appear for Mr Love to consider the material which had been filed in the application by Roads Corporation and also to consider the extent to which the many grounds of opposition which had been raised by Mr Love remained open in the application.  Counsel appearing for Mr Love at the hearing of the application did not consent to the sequestration order being made but responsibly conceded that there was no basis to oppose the application.

2. The Court may make a sequestration order against the estate of a debtor under s 52(1) of the