Sparks v Harper
[2008] FMCA 1260
•14 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SPARKS v HARPER | [2008] FMCA 1260 |
| BANKRUPTCY – Sequestration order. |
| Supreme Court Act 1995, s.25 |
| Applicant: | GRANT DENE SPARKS AS LIQUIDATOR OF KERREDAN NO 52 PTY LTD |
| Respondent: | CHRISTOPHER JOHN HARPER |
| File Number: | BRG 265 of 2008 |
| Judgment of: | Wilson FM |
| Hearing date: | 14 July 2008 |
| Date of Last Submission: | 14 July 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 14 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | NA |
| Solicitors for the Applicant: | ClarkeKann |
| Counsel for the Respondent: | NA |
| Respondent in person: | Christopher John Harper |
ORDERS
A Sequestration Order be made against the estate of CHRISTOPHER JOHN HARPER.
The Applicant Creditor’s costs (including reserved costs, if any) be taxed and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.
Ann Fordyce be appointed as trustee of the Respondent’s Estate.
The Court notes that the date of the act of bankruptcy is 6 March 2008.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 265 of 2008
| GRANT DENE SPARKS AS LIQUIDATOR OF KEREDAN NO 52 PTY LTD |
Applicant
And
| CHRISTOPHER JOHN HARPER |
Respondent
REASONS FOR JUDGMENT
On 17 April 2007 Atkinson J gave judgment in the Supreme Court of Queensland in favour of the applicant against the first respondent relevantly by:
a)declaring that motor vehicles listed in sch.1 to her Honour's judgment were assets of a company Kerredan No 52 Pty Ltd (in liquidation);.
b)declaring that the respondent held the proceeds of sale of any of the vehicles in contravention of undertakings given to the Supreme Court on 27 September 2000 and 14 February 2001 on trust for the applicant; and
c)assessed damages pursuant to s.25 of the Supreme Court Act 1995 for the assessed value of vehicles sold, transferred or otherwise disposed of in contravention of such orders in the sum of $109,500.
I am informed by the solicitor for the applicant that such judgment was given in default of appearance of the first respondent but after the applicant was required to prove its case to her Honour. At that time the respondent had put on evidence in the Supreme Court proceedings, to which I shall shortly refer.
In reliance upon such judgment the applicant issued a bankruptcy notice that was served on the respondent on 14 February 2008. There was no compliance with that notice. A creditor’s petition was issued and served on the respondent on 9 May 2008. The respondent accepts that the formal requirements of the Bankruptcy Act have been complied with regarding the documents necessary for the issue of a sequestration order. By a notice of appearance filed 27 May 2008 the respondent opposes "the application for winding up" by which I take it that he means the application for a sequestration order.
The grounds of opposition are set out and seek to challenge the orders made by Atkinson J on 17 April 2007. The respondent asserts that no debt or liability was owed by him to the petitioning creditor and that her Honour erred in her declarations to which I have already referred.
The respondent also asserts that the solicitors acting for the petitioning creditor were aware that the relevant vehicles were never the property of Kerredan No 52 Pty Ltd (in liquidation). That is, as I understand it, the respondent's primary case is that the vehicles which Atkinson J has declared were property of the company were in fact either his property or that of himself and his mother.
The difficulty with that contention is that the matter has already been determined by the Supreme Court. As the petitioning creditor submits, the respondent bears the onus of proving that there is good reason why this Court should go behind the judgment that has been entered on the record.
To discharge that onus the respondent must show that there is some doubt attending the judgment which causes this Court to think that it was entered in error. This Court is not an appropriate forum for simply having a second run of the argument that judgment should not be entered. There must be a substantial dispute as to the existence of the relevant debt.
In this Court the only evidence relied upon by the respondent is the affidavit previously filed by him in the Supreme Court and also the affidavit of Garth Butler, the Queensland marketing assistant for the financier that applied for the liquidation of Kerredan No 52 Pty Ltd. That is, the respondent has not put before this Court any further evidence than that which was before Atkinson J. No application has been made to set aside the judgment of 17 April 2007, notwithstanding that it was entered in the absence of the respondent.
No appeal has been brought from that judgment. Given that no additional evidence has been adduced and given that no arguments have been advanced that were not contained in the affidavit material before her Honour I am not persuaded that there is any substantial dispute as to the underlying debt that warrants this Court going behind the judgment properly entered. That being so there is no basis for refusing to make a sequestration order.
I make such an order. I note that the date of the act of bankruptcy is 6 March 2008.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 4 September 2008
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