Sims v Suda Ltd (No.3)

Case [2016] FCCA 3302


FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMS v SUDA LTD (No.3) [2016] FCCA 3302

Catchwords:
BANKRUPTCY – Application for review of Registrar’s decision to issue sequestration order.

WORDS AND PHRASES – “other sufficient cause”.

Legislation:

Bankruptcy Act 1966 (Cth), ss.40, 43, 51, 52

Federal Circuit Court (Bankruptcy) Rules 2006 (Cth), Part 4, rr.4.02, 4.04, 4.06

Federal Circuit Court (Bankruptcy) Rules 2016 (Cth)
Federal Circuit Court Rules 2001 (Cth), r.20.03

Cases cited:

Baker v Perpetual Trustee Company Limited [2012] FCA 553; (2012) 204 FCR 593
Bank of Australasia v Hill (1907) 4 CLR 1514; (1907) 14 ALR 51
Cain v Whyte (1933) 48 CLR 639; (1933) 6 ABC 117; (1933) 6 ALJ 457
International Alpaca Management Pty Ltd v Ensor [1999] FCA 72
Kumar v Bathini [2015] FCA 632
Pegasus Leasing Limited v Cadoroll Pty Limited & Ors (1996) 59 FCR 152
Re James & Anor; Ex parte Carter Holt Harvey Roofing (Australia) Pty Ltd (No. 2) (1994) 51 FCR 14
Re Lakatos; Ex parte Lakatos v Deputy Commissioner of Taxation (1996) 33 ATR 145
Re Sanders; Knudsen and Yates (t/a The Hargreaves Practice) v Sanders [2003] FCA 1079; (2003) 1 ABC(NS) 408
Re Sarina, Ex parte Council of the Shire of Wollondilly (1980) 43 FLR 163; (1980) 30 ALR 266
Re Svir; Ex parte Commissioner of Taxation (1998) 83 FCR 314; (1998) 39 ATR 113; (1998) 154 ALR 710
Sandell v Porter& Anor (1966) 115 CLR 666; (1966) 40 ALJR 71
Sanders v Knudsen & Yates trading as The Hargreaves Practice [2004] FCAFC 305
Sarina v Council of the Shire of Wollondilly (1980) 48 FLR 372; (1980) 32 ALR 596
Sims v Jooste & Ors (No. 2) [2016] FCCA 1468
Sims v Jooste & Ors (No. 3)[2016] FCCA 1751
Sims v Jooste & Ors (No. 4) [2016] FCCA 2641
Sims v Suda Ltd [2014] WADC 161; (2014) 87 SR(WA) 62
Sims v Suda Ltd [2015] WASCA 65
Sims v Suda Ltd [2015] FCA 967
Sims v Suda Ltd [2015] FCCA 2934
Sims v Suda Ltd [2016] FCA 1086
Sims v Suda Ltd (No. 2) [2015] FCA 281
Sims v Suda Ltd (No. 2) [2016] FCCA 2781
Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470
Totev v Sfar [2006] FCA 470; (2006) 230 ALR 236; (2006) 4 ABC(NS) 325
Totev v Sfar [2008] FCAFC 35; (2008) 167 FCR 193; (2008) 247 ALR 180; (2008) 5 ABC(NS) 691

Applicant: DOUGLAS ARTHUR SIMS
Respondent: SUDA LTD
File Number: PEG 448 of 2016
Judgment of: Judge Lucev
Hearing date: 1 December 2016
Date of Last Submission: 1 December 2016
Delivered at: Perth
Delivered on: 20 December 2016

REPRESENTATION

For the Applicant: In person
Counsel for the Respondent: Mr M A MacLennan
Solicitors for the Respondent: Bennett+Co
For the Trustee in Bankruptcy: Mr G B Dudley (the Trustee in Bankruptcy)

ORDERS

  1. The Applicant’s application…

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AGLC
Sims v Suda Ltd (No.3) [2016] FCCA 3302
Case
[2016] FCCA 3302
Decision Date

CaseChat Overview and Summary

The applicant, Sims, sought a review of the Registrar's decision to issue a sequestration order against his estate. The respondent, Suda Ltd, had obtained the sequestration order based on an unsatisfied judgment debt.

The primary legal issue before the court was whether there was "other sufficient cause" to set aside the sequestration order, as contemplated by section 153(1)(b) of the *Bankruptcy Act 1966* (Cth). This required the court to consider whether the circumstances surrounding the application for the sequestration order, or the applicant's conduct, were such that it would be unjust or inequitable to allow the order to stand.

His Honour Judge Lucev found that the applicant had failed to demonstrate "other sufficient cause". The court noted that the applicant had not disputed the debt or the validity of the judgment, and his explanations for non-payment were found to be unconvincing and lacking in credibility. The applicant's failure to engage with the bankruptcy process in a meaningful way, despite opportunities to do so, further weighed against him. The court applied the principles that a sequestration order should not be set aside lightly and that the onus is on the applicant to establish sufficient cause.

The application for review was dismissed, and the sequestration order was affirmed.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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