St George Finance Limited v De Jesus & Spark
[2008] FMCA 1261
•11 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ST GEORGE FINANCE LIMITED v DE JESUS & SPARK | [2008] FMCA 1261 |
| BANKRUPTCY – Sequestration order – application for adjournment refused. |
| Applicant: | ST GEORGE FINANCE LIMITED |
| Respondent: | MARK PAUL DE JESUS |
| File Number: | BRG 207 of 2008 |
| Applicant: | ST GEORGE FINANCE LIMITED |
| Respondent: | RICHARD LAURENCE SPARK |
| File Number: | BRG 208 of 2008 |
| Judgment of: | Wilson FM |
| Hearing date: | 11 July 2008 |
| Date of Last Submission: | 11 July 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 11 July 2008 |
REPRESENTATION in the matters of BRG207 of 2008 and BRG208 of 2008
| Counsel for the Applicant: | NA |
| Solicitors for the Applicant: | Mullins Lawyers |
| Counsel for the Respondent: | NA |
| Solicitors for the Respondent: | O’Neills Solicitors |
ORDERS for the matter of BRG207 of 2008
A Sequestration Order be made against the estate of MARK PAUL DE JESUS.
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.
That the Trustees of the Estate be John Gervase Shanahan and John Richard Park of Korda Mentha.
The Court notes that the date of the act of bankruptcy is 31 March 2008.
ORDERS for the matter of BRG208 of 2008
A Sequestration Order be made against the estate of RICHARD LAURENCE SPARK.
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 Act1966.
That the Trustees of the Estate be John Gervase Shanahan and John Richard Park of Korda Mentha.
The Court notes that the date of the act of bankruptcy is 27 March 2008.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 207 of 2008
| ST GEORGE FINANCE LIMITED (ACN 001 094 471) |
Applicant
And
| MARK PAUL DE JESUS |
Respondent
BRG 208 OF 2008
| ST GEORGE FINANCE LIMITED (ACN 001 094 471) |
Applicant
And
| RICHARD LAURENCE SPARK |
Respondent
REASONS FOR JUDGMENT
On 6 February 2008, the applicant obtained judgment against both respondents in the Supreme Court of Queensland in default of appearance for $904,327.76. Bankruptcy notices were properly issued and served and have not been complied with by either respondent. Creditors' petitions have been filed and served, in the case of the respondent, De Jesus, on 15 April 2008 and in the case of the respondent, Spark, on 21 April 2008.
The matter has been adjourned on five previous occasions. The matter first came before the Court on 7 May 2008 when it was adjourned to 21 May 2008 to enable the parties to continue discussions. It was then adjourned to 28 May, 11 June, 2 July and then until today. On the last occasion, the matter was adjourned with the Registrar noting the file that the respondent was seeking finance.
The solicitor for the respondents seeks a further adjournment of the creditors' petition. That is opposed. In support of the application for an adjournment, the respondents rely on the affidavit of Simon Alexander Birch who describes himself as an employee of the Loans Café a licensed finance broker firm. Apparently, on 4 July 2008, the respondent, De Jesus, gave instructions to that business to raise finance to meet a number of obligations of the respondents. Mr Birch swears that on 9 July 2008, he spoke to a representative of Bank West who confirmed that finance had been approved and a letter of offer would be issued within 48 hours. The amount of the loan said to have been approved would be $7.9 million which funds would be available not later than 30 days after mortgage documents have been executed and returned.
Mr Birch has been instructed by Mr De Jesus that $5 million of these funds is required to be paid to a first mortgagee of properties, $970,000 is to be paid to the second mortgagee of properties and the balance of the loan funds of up to $960,000 will be available to satisfy the debt of the respondents to the applicant creditor "subject to the resolution of any dispute between (the respondents) and (the applicant)".
There are a number of relevant matters that become apparent from this affidavit. First, although an oral approval has been foreshadowed, the financing arrangements are not yet in place. Secondly, and most importantly, there is no evidence from either respondent that any balance of loan funds available will, in fact, be paid to the petitioning creditor because they will be subject to the resolution of a dispute, ,the nature of which is not referred to in any affidavit material.
The respondents have not put on any evidence to challenge the petitioning creditor's debt nor any attempt to establish solvency as that term is properly understood. Mr Delaney who appeared today for both respondents received instructions as recently as 4 o'clock yesterday afternoon and is not to be criticised for not having such material available for the Court. The respondents have left their run rather late having had the indulgence of the Court on five previous occasions.
The solicitor for the petitioning creditor has pointed out that the respondents’ have previously engaged solicitors to act on their behalf and have had ample opportunity to put evidence before the Court if the petition was to be opposed. In my view, no good ground has been shown for a further adjournment of either creditor's petition and I refuse the application in that regard.
The petitioning creditors' documents are in order. The formal requirements of the Bankruptcy Act have been established and I make orders in terms of the draft submitted by the solicitor for the applicant in each case.
In the case of Mr Spark, I note that the date of act of bankruptcy is 27 March 2008 and in the case of Mr De Jesus 31 March 2008.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 4 September 2008
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