Smith v Shortland

[2009] FMCA 596

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SMITH v SHORTLAND & ANOR [2009] FMCA 596

BANKRUPTCY – Sequestration order – authority of one judgment creditor to apply for bankruptcy notice – authority required from co-plaintiffs.

Applicant: MARK WILLIAM SMITH

First Respondent: DARREN ROBERT SHORTLAND

Second Respondent: LYNDA JANE SMITH

File Number: BRG 794 of 2008

Judgment of: Wilson FM

Hearing date: 29 May 2009

Date of Last Submission: 29 May 2009

Delivered at: Brisbane

Delivered on: 29 May 2009

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: In person

Counsel for the First Respondent: N/A

Solicitors for the First Respondent: N/A

Counsel for the Second Respondent: N/A

Solicitors for the Second Respondent: N/A

ORDERS

1. A Sequestration Order be made against the estate of LYNDA JANE SMITH.

2. The Applicant Creditor’s costs, including reserved costs, if any be taxed and paid from the estate of the Respondent Debtors in accordance with the Bankruptcy Act 1966 (Cth).

The Court notes that the date of the act of bankruptcy is 28 May 2008.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 794 of 2008

MARK WILLIAM SMITH

Applicant

And

DARREN ROBERT SHORTLAND

First Respondent

LYNDA JANE SMITH

Second Respondent

REASONS FOR JUDGMENT

1. In these proceedings the applicant seeks a sequestration order against the second named respondent, Lynda Jane Smith.  A sequestration order was made against the first named respondent on 30 January 2009.  A Bankruptcy Notice was served on the second named respondent on 15 August 2008.  No notice stating grounds of opposition nor any application to set aside the Bankruptcy Notice was made on behalf of the second named respondent. 

2. On 29 April 2009 Deputy Registrar Belcher made orders dispensing with the requirement for personal service of the creditor's petition on the second named respondent and specified three methods by which that document was to be served on her.  I am satisfied, having regard to the affidavit of the applicant filed by leave on 22 May 2009, that he has complied with that order insofar as it was possible for him to do so.  The Registrar had ordered as a third method of service delivery of the documents to a specified email address, however, that email address is no longer operated.  I am satisfied that the applicant has effected service of the creditor's petition.

3. An issue was raised in these proceedings as to the ability of the applicant himself to bring bankruptcy proceedings when the judgment in reliance on which the Bankruptcy Notice was issued was obtained by three plaintiffs in the Supreme Court of New South Wales.  The applicant is one of those three plaintiffs.  The applicant has now filed evidence which demonstrates that the applicant and the other two plaintiffs are in fact the executors of the estate of the applicant's late mother.  The other two judgment creditors are the applicant's brothers.  The proceedings were brought in connection with the estate, by the executors. 

4. The Deputy Registrar raised an issue as to whether the applicant required the authorisation of his joint creditors to issue a Bankruptcy Notice and bring bankruptcy proceedings to the stage of a sequestration order.  I am satisfied, having regard to the affidavits filed by leave today, that the applicant is acting as executor and with the authority of his co-executor, Frank John Smith.  It seems that Steven Robert Smith is not taking any part in the proceedings and was probably named as a plaintiff in the New South Wales Supreme Court action as he was one of the three executors appointed under the applicant mother's will.  I am satisfied that the applicant has authority to bring these proceedings. 

5. Otherwise, the documents are in order, and a sequestration order should be made.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Wilson FM

Associate:  Lynnette Chin

Date:  25 June 2009