Simmons v Pacific Premium Funding Pty Ltd
[2011] FMCA 151
•7 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SIMMONS v PACIFIC PREMIUM FUNDING PTY LTD | [2011] FMCA 151 |
| BANKRUPTCY – Application for review – failure to notify creditors – bankrupt settling with petitioning creditor, supporting creditor and trustee – late application by further creditor. |
| Bankruptcy Act 1966 |
| Applicant: | WAYNE ANTHONY SIMMONS |
| Respondent: | PACIFIC PREMIUM FUNDING PTY LTD |
| File Number: | MLG 1285 of 2010 |
| Judgment of: | Burchardt FM |
| Hearing date: | 7 March 2011 |
| Date of Last Submission: | 7 March 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 7 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Twohill |
| Solicitors for the Applicant: | Twohill Lawyers |
| Counsel for the Respondent: | Mr R. Misso |
| Solicitors for the Respondent: | Forbes Dowling Lawyers |
| The Trustee: | Mr S. Michell |
| Solicitors for the Trustee: | Hudson Lawyers |
| Counsel for the Supporting Creditor: | Mr E. Hansford |
| Solicitors for the Supporting Creditor: | MSB Lawyers |
ORDERS
The Sequestration Order made on 21 December 2010 be set aside.
The Creditor’s Petition filed on 16 September 2010 by Pacific Premium Funding Pty Ltd be withdrawn.
There be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1285 of 2010
| WAYNE ANTHONY SIMMONS |
Applicant
And
| PACIFIC PREMIUM FUNDING PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter commenced as a relatively straightforward creditor’s petition in September of last year. The requisite documents, including an affidavit of service of the creditor’s petition, were filed by December. Noteworthily, the affidavit of service, sworn by one John David Lilley, asserts personal service upon Mr Simmons and an acknowledgement by Mr Simmons on 10 November 2010 at 6.10 pm as to who he was.
The rules having been complied with, on 21 December 2010 Registrar Caporale made a sequestration order against Mr Simmons and in due course a trustee was appointed. On 11 January 2011 an application for review was filed, supported by an affidavit of Mr Simmons’ solicitor. That person is Mr Twohill and he put on, albeit on a hearsay basis, matters going to set aside the sequestration order including that
Mr Simmons had no knowledge whatever of the proceedings that had given rise to the creditor’s petition until contacted by the trustee.
On 21 January 2011, by consent, I adjourned the application for review until 18 February. On 17 February Mr Simmons filed an extensive affidavit taking issue with service not only of the petition but the antecedent bankruptcy notice. It is fair to say that on its face,
Mr Simmons’ affidavit puts forward cogent reasons to support his assertion that he was never served. He was also supported by a further affidavit by his mother, Maureen Simmons, filed 17 February, which once again supports the thesis that Mr Simmons was simply far too ill on 10 November to have received service of anything.
On 18 February the hearing was again adjourned to enable negotiations to take place between the petitioning creditor, a supporting creditor and Mr Simmons. To date, it is apparent that those negotiations have been successful and both the supporting creditor and the petitioning creditor are quite content for me to make orders by consent setting aside the sequestration order and withdrawing the petition, with no orders as to costs.
Following some further debate before the Court, Mr Simmons has also come to terms with the trustee, in terms the trustee who is present in Court confirms are satisfactory to him and he likewise, therefore, supports the orders that the two creditors are seeking. The complication in the matter is that it is plain that the applicant has not given notice to all of his creditors and I know that for a certainty because another one has actually contacted the Court by correspondence sent late on Friday from Jon Kent Lawyers.
My initial view was that I could not proceed without according to
Jon Kent Lawyers procedural fairness and an opportunity to be heard, which is what their letter foreshadows. However, I have been informed by Mr Twohill, as an officer of the Court, that while Jon Kent Lawyers may have only become recently aware of the matter, their client, Garlex Proprietary Limited, has known about these proceedings for some five weeks and has not taken any steps to intervene until the last moment.
In these circumstances, in my view, bearing in mind that there is a very real issue as to whether Mr Simmons was ever served with anything, thus whether or not there was ever an act of bankruptcy or whether or not the petition should have proceeded, it seems to me appropriate not to take the point about the failure to serve other creditors further. There is no extant controversy between any of the primary parties to the dispute before the Court. The position of any other creditors is not, in my view, likely to be impacted on because they have their remedies in any event.
It is not appropriate to adjourn these proceedings for a further two weeks to grant to Garlex Proprietary Limited a further opportunity to be heard in circumstances where an officer of the Court assures me they have had plenty of notice of this proceeding and have not intervened until the last moment.
Accordingly, by consent, I make the orders sought.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 7 March 2011
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