Sampson (Trustee) v Taboada

[2016] FCA 926

FEDERAL COURT OF AUSTRALIA

Sampson (Trustee) v Taboada [2016] FCA 926

File number(s):

NSD 650 of 2016

Judge(s):

BURLEY  J

Date of judgment:

12 August 2016

Catchwords:

BANKRUPTCY AND INSOLVENCY – failure to comply with notice issued pursuant to s 139ZQ of the Bankruptcy Act 1996 (Cth) 

PRACTICE AND PROCEDURE – interlocutory application for default judgment – whether service of interlocutory application effected

Legislation:

Bankruptcy Act 1996 (Cth) s 139ZQ

Federal Court of Australia Act 1976 (Cth) ss 51A, 52

Federal Court Rules 2011 (Cth) rr 5.22, 5.23, 16.07, 16.32, 17.01

Cases cited:

Sony Corporation v Costaneo [2012] FCA 153

Date of hearing:

8 August 2016

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

14

Solicitor for the Applicant:

Ms S Heimanis of Grace Lawyers

Counsel for the First and Second Respondents:

The first and second respondents did not appear

Table of Corrections
31 August 2016	In the medium neutral citation, “Taboda” has been replaced with “Taboada”.
31 August 2016	On the orders page the First Respondent’s surname has been changed from “Taboda” to “Taboada”.
31 August 2016	On the orders page the Second Respondent’s surname has been changed from “Taboda” to “Taboada”.

ORDERS

NSD 650 of 2016

BETWEEN:

DAVID SAMPSON AS TRUSTEE OF THE BANKRUPT ESTATES OF NATALIE JOANNE MAKISI & TUIPULOTU SIONE MAKISI

Applicant

AND:

MONICA TABOADA

First Respondent

JULIO TABOADA

Second Respondent

JUDGE:	BURLEY J
DATE OF ORDER:	12 AUGUST 2016

THE COURT ORDERS THAT:

1.That the respondents pay the applicant $262,026.29.

2.That the respondents pay interest pursuant to section 51A of the Federal Court of Australia Act 1976 (Cth) from 7 December 2015 until 21 June 2016 which I assess to be $8,527.86.

3.That the respondents pay the applicant’s costs of the proceedings.

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

REASONS FOR JUDGMENT

BURLEY J:

1. By interlocutory application filed on 5 May 2016, the applicant seeks orders for default judgment pursuant to rule 5.23(2)(c) of the Federal Court Rules 2011 (Cth) (the Rules).

2. The proceedings concern the failure on the part of the respondents to comply with a notice issued by the Official Receiver pursuant to section 139ZQ of the Bankruptcy Act 1996 (Cth) demanding payment of the sum of $262,026.29.

3. An originating application and statement of claim were filed on 6 May 2016.  On 18 May 2016 Gordon Jeffrey Bryant of F.C. Bryant Thomas & Co. (F.C. Bryant Thomas & Co) filed a notice of address for service on behalf of the respondents nominating that firm’s postal, document exchange and email addresses as the addresses for service upon the respondents of documents in the proceedings.

4. In this interlocutory application the applicant relies upon two affidavits affirmed by Nicholas John Hensley affirmed on 27 May 2016 and 19 July 2016, an affidavit of Tyla Hamilton affirmed on 19 July 2016 and an affidavit of David Sampson sworn…