Sexton v Tagget - [2007] FMCA 1438

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SEXTON v TAGGET

[2007] FMCA 1438

BANKRUPTCY – Creditor’s petition – applicant appealing against the judgment debt – appeal stayed – security for costs ordered – no other sufficient reason for the Court to refrain from making a sequestration order – stay on proceedings under the bankruptcy.

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

Adamopoulos & Anor v Olympic Airways SA & Ors (1990) 95 ALR 525
Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137

Applicant:

CHARLENE SEXTON

Respondent:

GRAEME HENRY TAGGET

File Number:

SYG862 of 2007

Judgment of:

Driver FM

Hearing date:

20 August 2007

Delivered at:

Sydney

Delivered on:

20 August 2007

REPRESENTATION

Solicitors for the Applicant:

Mr James Stevens
Barwick Stevens Lawyers

Solicitors for the Respondent:

Mr Grant Butterfield
Marsdens Law Group

ORDERS

A sequestration order is made against the estate of Graeme Henry Tagget.
The petitioning creditor’s costs, including reserved costs, if any, be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).
The Court notes that, under the Bankruptcy Regulations, a copy of these orders is to be given to the Official Receiver in Sydney within two days after these orders are entered.
The Court notes that the date of the act of bankruptcy is 13 March 2007.
The Court notes that a consent to act as trustee has been signed by Michael Gregory Jones.
The Court directs that the consent to act as trustee be lodged with the Official Receiver in Sydney.
All proceedings under order 1 are stayed pursuant to s.52(3) of the Bankruptcy Act for a period of 21 days.
The Court directs that the orders made today are not to be entered until the end of the 21 day stay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG862 of 2007

CHARLENE SEXTON

Applicant

And

GRAEME HENRY TAGGET

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a creditor's petition filed on 14 March 2007 seeking a sequestration order against the estate of Graeme Henry Tagget. The petitioning creditor relies upon a bankruptcy notice filed on 13 February 2007, an affidavit of service of the bankruptcy notice of Patrick F Murphy sworn on 20 February 2007, the creditor's petition itself, a part 2 affidavit verifying the creditor's petition sworn on 13 March 2007, an affidavit of service of the creditor's petition by Patrick F Murphy sworn on 4 April 2007 and two affidavits of Robert Daoud sworn 16 August 2007 and 20 August 2007. The first of those relates to developments in the NSW Court of Appeal in relation to an appeal against the judgment debt. The second of those is an affidavit of search and debt.
On 15 May 2007 the respondent filed a notice stating grounds of opposition to the petition. That relevantly states that the respondent has filed an appeal in the Supreme Court of New South Wales from the decision upon which the petition is based, a copy of which is annexed to a supporting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sexton v Tagget

Details

AGLC: Sexton v Tagget [2007] FMCA 1438
Case: [2007] FMCA 1438
Decision Date: 20 August 2007

CaseChat Overview and Summary

The case of Sexton v Tagget involved a dispute where the petitioner, Sexton, sought a sequestration order against the estate of the respondent, Graeme Henry Tagget. The matter was heard in the Federal Court of Australia. The petitioner alleged that the respondent had committed acts of bankruptcy and requested the court to declare him bankrupt and appoint a trustee.

The primary legal issue before the court was whether the respondent had indeed committed acts of bankruptcy warranting sequestration. The court also needed to determine whether the petitioner was entitled to costs and if the orders should include the appointment of a trustee and the imposition of a stay on proceedings.

In rendering its decision, the court found that the respondent had indeed committed acts of bankruptcy, thus justifying the granting of the sequestration order. The court also ruled that the petitioner was entitled to their costs, which should be taxed and paid in accordance with the provisions of the Bankruptcy Act 1966 (Cth). The court noted the requirement to provide a copy of the orders to the Official Receiver in Sydney and identified the date of the act of bankruptcy. Furthermore, the court acknowledged the consent of Michael Gregory Jones to act as trustee and directed that this consent be lodged with the Official Receiver. Lastly, the court ordered a stay of proceedings for 21 days and directed that the orders should not be entered until the end of this stay period.

Orders

Orders of the court

A sequestration order is made against the estate of Graeme Henry Tagget.

The petitioning creditor’s costs, including reserved costs, if any, be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).

The Court notes that, under the Bankruptcy Regulations, a copy of these orders is to be given to the Official Receiver in Sydney within two days after these orders are entered.

The Court notes that the date of the act of bankruptcy is 13 March 2007.

The Court notes that a consent to act as trustee has been signed by Michael Gregory Jones.

The Court directs that the consent to act as trustee be lodged with the Official Receiver in Sydney.

All proceedings under order 1 are stayed pursuant to s.52(3) of the Bankruptcy Act for a period of 21 days.

The Court directs that the orders made today are not to be entered until the end of the 21 day stay.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.