Singer v Dart

[2015] FCCA 109

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGER & ANOR v DART & ANOR [2015] FCCA 109

Catchwords:
BANKRUPTCY – Contested Creditors Petition.

Legislation:  

Bankruptcy Act 1966 (Cth), s.52
Animal Care & Protection Act 2001

First Applicant: CLIFFORD SINGER

Second Applicant: ROYAL SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS QLD INC.

First Respondent: FREDERICK WILLIAM DART

Second Respondent: MEGAN ANN HAJRIDIN

File Number: BRG 534 of 2014

Judgment of: Judge Coker

Hearing date: 27 October 2014

Date of Last Submission: 27 October 2014

Delivered at: Townsville

Delivered on: 20 January 2015

REPRESENTATION

Counsel for the Applicants: Mr AJ Hockings

Solicitors for the Applicants: Roberts Nehmer McKee Lawyers

First Respondent: In Person

Second Respondent: In Person

ORDERS

1. A sequestration order be made against the estate of Frederick William Dart.

2. A sequestration order be made against the estate of Megan Ann Hajridin.

3. The applicant creditors’ costs be taxed and paid from the estate of the respondent debtors in accordance with the Bankruptcy Act 1966.

The Court notes that the date of the act of bankruptcy in relation to the First Respondent, Frederick William Dart is 19 May 2014 and in relation to the Second Respondent, Megan Ann Hajridin is 22 May 2014.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT TOWNSVILLE

BRG 534 of 2014

CLIFFORD SINGER

First Applicant

ROYAL SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS QLD INC.

Second Applicant

And

FREDERICK WILLIAM DART

First Respondent

MEGAN ANN HAJRIDIN

Second Respondent

REASONS FOR JUDGMENT

1. On 12 June 2014 Clifford Singer and The Royal Society for the Prevention of Cruelty to Animals Queensland Incorporated, whom I shall for convenience refer to as “the applicants”, filed a Creditor’s Petition in this court seeking the sequestration of the estates of Frederick William Dart and Megan Ann Hajridin.  For convenience I shall refer to them as “the respondents”. 

2. The Creditor’s Petition suggest that an act of bankruptcy has been committed by the respondents as a result of their non-compliance with the personally served bankruptcy notices which were previously issued.  The bankruptcy notices were served and, it appears, acknowledged that that had occurred, upon the respondent Fredrick William Dart on 28 April 2014, and upon the respondent Megan Ann Hajridin on 1 May 2014.

3. The bankruptcy notices were based upon orders of the Supreme Court of Queensland under the hand of the registrar of that court, with respect to the respondents in these proceedings paying costs to the applicants in the sum of $25,987.32.  The order for costs is dated 29 January 2014.  The totality of the amount claimed is $26,485.62, which is the amount ordered to be paid by way of costs, plus interest of $576.33.  The costs order arises from an order made in the Supreme Court on 4 March 2011, wherein Cullinane J, as he then was, of that court dismissed an application brought by the respondents and ordered that they pay the costs of and incidental to the proceedings. 

4. The litigation before the Supreme Court is lengthy.  The applicants here have provided a chronology in relation to what has finally led to the application for sequestration orders before this court.  The proceedings commenced over six years ago, in December of 2008.  At that time the respondents pleaded guilty in the Magistrates Court at Townsville to various offences under the Animal Care and Protection Act 2001.  The respondents were sentenced on 12 December 2008, however, those sentences were appealed, and on 11 December 2009 the District Court delivered judgment on the appeal in relation to the convictions in 2008. 

5. The sentences were disturbed, but not set aside, with regard to the fines imposed and costs ordered to be paid by the defendants.  As I noted on 4 March 2011, Cullinane J in the Supreme Court of Townsville dismissed the application for judicial review, and orders were made with regard to the payment of costs.  It should be noted that it is this costs order that underpins the bankruptcy notices. 

6. Subsequently other proceedings were brought by the applicants against the respondents in relation to issues with regard to animal care and protection, and those matters have proceeded through the courts.  In fact, there have been further appeals from decisions of the District Court of Queensland made to the Supreme Court of Queensland and, to some degree, success has been forthcoming for the respondents.  However, the various proceedings and appeals in the State Courts have not related to the costs order made on 4 March 2011, or the assessment of costs and the order relating to costs made on 29 January 2014.  The bankruptcy notice, as I have previously indicated, specifically refers to the claim in relation to costs arising from the decision of 4 March 2011, and the creditor’s petition in relation to the alleged act of bankruptcy relates directly to those costs. 

7. The respondents apparently sought to file an application with regard to the setting aside of the bankruptcy notices.  However, the filing was out of time, and that matter does not seem to have been further pressed.  In any event, whether it has or has not is perhaps irrelevant in relation to the ultimate determination of this proceeding with regard to whether there continues to be a debt outstanding, and a failure to meet the obligations that arise in relation to the payment. 

8. Section 52 of the Bankruptcy Act details the proof that is required in order to enable a creditor’s petition to be determined. The act of bankruptcy that is alleged to have given rise to the creditor’s petition is the failure within 21 days after service of the bankruptcy notice to pay the debt claimed, make arrangements to the applicants’ satisfaction for the payment of the debt, or to apply to set the bankruptcy notice aside. As I said previously, the respondents did indicate an intent to apply to set the bankruptcy notice aside, but were out of time and refused leave to proceed in relation to that.

9. Otherwise, it is clear that the debt has not been paid, and no arrangement satisfactory to the applicants has been put in place with regard to the payment of the debt by instalment. In fact, proceedings were brought by the respondents in the Supreme Court in relation to an application for an instalment order, and on 16 September 2014 that court dismissed the application for an instalment order and made a further order for costs, fixed in the sum of $3000. Clearly, the debt remains outstanding and, as required pursuant to the provisions of section 52 of the Bankruptcy Act, there is necessary proof available of the matters required to satisfy the making of a sequestration order.

10. Notwithstanding the various submissions that have been made in relation to this matter by the respondents, it is clear that ultimately a determination is required to be made in accordance with the legal obligations and responsibilities and, in particular, the obligation to meet the payments as and when they fall due.  A failure to meet such payments as might give rise to a judgment that then leads to the application that is now before this court is the basis upon which the dealings between parties are conducted.  A failure to meet obligations to make payments as and when required is a fundamental breach of the expectations of our society and of our law generally. 

11. The applicants are entitled to the payments in accordance with the determinations of the Supreme Court.  The respondents have not made those payments.  Certainly they have submitted that there were errors and failures in relation to the various prosecutions that were made, and there is also an indication that an application may be made to the High Court to seek special leave in respect of the proceedings.  That may be so, but the final consideration is whether the debt is due and owing, and whether it has been paid.  It has not been paid, and I am satisfied, therefore, that orders for sequestration should be made. 

12. The various affidavits that have been filed on the part of the applicants establish that the debt remains outstanding, that there is no satisfactory arrangement in relation to payment, and that, accordingly, a sequestration order should be made against the estates of the respondents, Fredrick William Dart and Megan Ann Hajridin.  I intend to make orders as indicated in terms of those noted at the commencement of these reasons. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Coker.

Associate: 

Date:  20 January 2015