Senworth Captial Pty Ltd (Trustee) v Wakim, in the matter of Wakim
[2023] FedCFamC2G 96
Federal Circuit and Family Court of Australia
(DIVISION 2)
Senworth Captial Pty Ltd (Trustee) v Wakim, in the matter of Wakim [2023] FedCFamC2G 96
File number(s): BRG 277 of 2022 Judgment of: JUDGE EGAN Date of judgment: 10 February 2023 Catchwords: BANKRUPTCY – Application for review of sequestration order made by registrar against respondent– failure by respondent to comply with guillotine order – non-appearance by respondent at final hearing – failure by respondent to show ability to satisfy judgment debt – application for review dismissed Division: Division 2 General Federal Law Number of paragraphs: 11 Date of last submission/s: 10 February 2023 Date of hearing: 10 February 2023 Place: Brisbane Counsel for the Applicant: Mr R Tooth Solicitor for the Applicant: Redchip Lawyers Solicitor for the Respondent: Juris League Consultancy
Table of Corrections 15 February 2023 In Paragraph 1, the spelling of Registrar “Schmidt” was corrected. ORDERS
BRG 277 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SENWORTH CAPITAL PTY LTD AS TRUSTEE FOR THE CAR LOAN SECURITY TRUST
Applicant
AND: SIMON WAKIM
Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
10 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The Respondent’s Application for Review filed on 28 October 2022 be dismissed.
2.The Respondent pay the Applicant’s costs of and incidental to the Application for Review, such costs to be paid from the estate of the Respondent in accordance with the Bankruptcy Act 1966 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge Egan
Introduction
The applicant in this matter sought review of the making of a sequestration order by Registrar Schmidt on 28 October 2022, by the filing of an application for review of that registrar’s decision in this court on 2 November 2022.
During the course of earlier hearings in respect of the application for review, it was asserted on behalf of the application bankrupt that he had assets far exceeding the judgment debt and that, accordingly, the sequestration order should be set aside.
On 3 February 2023, the application for review was listed for hearing before this court. The applicant on that occasion was ably represented by Mr Yakenian, who was a solicitor then representing the applicant. During the course of the hearing on that day, Mr Yakenian sought an adjournment of the review application hearing on the basis that it would give time to the applicant to pay the outstanding debt owed to the petitioning creditor, Senworth Capital Pty Ltd.
The application for adjournment was granted, on condition that the costs of the adjournment agreed in the amount of $1500 be paid as cleared funds into the trust account of Redchip Lawyers, by 12 pm Australian Eastern Standard Time, on 9 February 2023.
In an affidavit of one Mr Carrier-Hubbard, filed on 9 February 2023 at 2.58 pm, it was deposed that no cleared funds had been paid by, or on behalf of the applicant, into the trust account of Redchip lawyers, as at 12 midday on 9 February 2023.
In the light of that non-payment, Mr Tooth of Counsel sought an order that the application for review filed on 2 November 2022 be dismissed.
Mr Yakenian again appeared on behalf of the applicant today. He advised the court that he had passed on to the applicant the terms of the orders made by the Court on 3 February 2023, and further, that he had impressed upon the applicant the seriousness of such orders should the sum of $1500 not be paid by 12 midday on 9 February 2023. The applicant clearly has not heeded the warning of his lawyer, or had due regard to the orders the court made on 3 February 2023.
Mr Carrier-Hubbard also filed, on 9 February 2023, an affidavit of debt, and an affidavit of search. Each of those affidavits confirm that the debt outstanding remained at $3,482,364.82, and that no other documents of relevance had been filed on behalf of the applicant indicating that there was any prospect of imminent payment.
In those circumstances, the application for review filed on behalf of the applicant on 28 October 2022 is dismissed. Mr Yakenian indicated at the outset that he did not object to any order of the court in those terms.
The respondent sought an order that the costs of the application ought to be paid from the estate of the applicant in accordance with the Bankruptcy Act.
Accordingly, an order will be made in those terms.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 10 February 2023
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