Rookharp Pty Ltd v Webb

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROOKHARP PTY LTD & ANOR v WEBB & ANOR [2012] FMCA 607

BANKRUPTCY – Creditor’s petition – no appearance of debtors at hearing – no grounds of opposition – sequestration order made.

Bankruptcy Act 1966 (Cth), s.52(1)

Rookharp Pty Limited v Webb & Anor [2011] FMCA 801

First Applicant: ROOKHARP PTY LTD

Second Applicant: DAVID ROOKE

First Respondent: IVAN JOHN WEBB

Second Respondent: ELAINE THERESE WEBB

File Number: SYG 2373 of 2011

Judgment of: Smith FM

Hearing date: 5 July 2012

Delivered at: Sydney

Delivered on: 5 July 2012

REPRESENTATION

Counsel for the Applicants: Mr B Skinner

Solicitors for the Applicants: McLean & Associates

Counsel for the Respondents: No appearance by or on behalf of the respondents

ORDERS

1. A sequestration order be made against the estate of Ivan John Webb. 

2. A sequestration order be made against the estate of Elaine Therese Webb. 

3. The applicant creditors’ costs, including all reserved costs, be taxed and paid from the estates of the respondent debtors in accordance with the Bankruptcy Act 1966 (Cth).

4. Note that the date of the act of bankruptcy in relation to Ivan John Webb is 23 August 2011. 

5. Note that the date of the act of bankruptcy in relation to Elaine Therese Webb is 22 August 2011. 

6. Note that a consent to act as trustee in relation to the estates of both respondents has been signed by Alan Richard Nicholls. 

7. The applicants must give a copy of this order to the Official Receiver within 2 working days. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2373 of 2011

ROOKHARP PTY LTD

First Applicant

DAVID ROOKE

Second Applicant

And

IVAN JOHN WEBB

First Respondent

ELAINE THERESE WEBB

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is a creditor’s petition in which the present petitioners, Rookharp Pty Ltd and David Rooke, were substituted for the original petitioner, which was The Owners of Strata Plan No 51507.  The original petition was lodged on 19 October 2011, and the original petitoner was given permission to withdraw by a Registrar on 1 February 2012.  The present petitioners were then substituted by order of a Registrar on 15 February 2012.  On that occasion, the two respondent debtors, Mr and Mrs Webb, were represented by counsel, and it is unclear to me whether they opposed the substitution.  The motion for substitution was supported by an affidavit of debt which essentially foreshadowed the indebtedness now set out in the amended petition. 

2. The substituted petitioners’ amended petition relies on the acts of bankruptcy asserted by the original petitioner, correcting some minor discrepancies.  On the evidence which was previously filed and served on the debtors, I am satisfied as to due service of a valid bankruptcy notice on each of the debtors, and their failure to comply.  The affidavits of service can be found attached to an affidavit of Ms Ackland sworn and filed on 19 October 2011.  I am satisfied that an act of bankruptcy in relation to Mr Webb occurred on 23…