State of Queensland v Naidoo
[2019] FCCA 3787
•24 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STATE OF QUEENSLAND v NAIDOO | [2019] FCCA 3787 |
| Catchwords: BANKRUPTCY – Proceedings in connection with sequestration – petition and sequestration order – hearing of creditor’s petition and form of sequestration order – going behind judgment – generally. |
| Legislation: Bankruptcy Act 1966 (Cth), s.52 |
| Cases cited: Cristovao v Registrar Trott [2019] FCAFC 88 Cristovao v Tan & Tan Lawyers Pty Ltd 16 ABC(NS) 123; [2018] FCAFC 41 Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132 |
| Applicant: | STATE OF QUEENSLAND |
| Respondent: | NAVIN NAIDOO |
| File Number: | BRG 679 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 27 November 2019 |
| Date of Last Submission: | 27 November 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 24 December 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Corrs Chambers Westgarth |
| The Respondent appeared in person. |
ORDERS
A sequestration order be made against the estate of Navin Naidoo.
The petitioning creditor’s costs of and incidental to the petition be fixed in the sum of $9,363 and paid in accordance with the Federal Circuit Court (Bankruptcy) Rules 2016.
IT IS NOTED:
The date of the act of bankruptcy is 21 February, 2019.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 679 of 2019
| STATE OF QUEENSLAND |
Applicant
And
| NAVIN NAIDOO |
Respondent
REASONS FOR JUDGMENT
On 18 January, 2013 the respondent commenced proceedings in the District Court of Queensland against the two applicants in these proceedings. The original claim and statement of claim raised a number of allegations and potential causes of action including defamation, and reprisal.
The applicants’ solicitors represented both applicants throughout those proceedings. The applicants were indemnified in respect of the respondent’s claim and their legal costs by the Queensland Government Insurance Fund, a part of Queensland Treasury and is the self-managed insurance fund of the State of Queensland.
The respondent is a qualified lawyer admitted to practice as a barrister in South Africa. He is also a medical doctor. He represented himself for most of the District Court proceedings including at the trial. He did retain legal representation at certain times, including to settle the final pleading on which he relied at trial. Interlocutory applications saw all of the respondent’s claims in those proceedings, save for his defamation suit, struck out. The trial proceeded on his defamation claim alone.
Judgment in the District Court proceedings was delivered on 22 March, 2017: Naidoo v State of Queensland & Anor [2017] QDC 63. The respondent’s claim was dismissed and on 24 April, 2017 the respondent was ordered to pay the applicants’ costs of and incidental to those proceedings to be assessed on the standard basis.
The costs were the subject of a default assessment process, which culminated in the issue of a certificate of assessment dated 13 August, 2018 for $227,504.65. On 17 August, 2018 an order was made by the District Court of Queensland that the respondent pay the applicants’ costs in the assessed amount of $227,504.65.
The applicants caused a bankruptcy notice to be issued on 4 December, 2018. It was served on the respondent on 31 January, 2019. The bankruptcy notice was based upon the costs order for $227,504.65.
There is no contest that the respondent failed, within 21 days after service of the bankruptcy notice (that is to say, by 21 February, 2019) to pay the debt or make an arrangement to the applicants’ satisfaction for payment of the debt. There was no application to set aside the bankruptcy notice.
On 1 August, 2019 the applicants presented the creditor’s petition in this proceeding. The petition relies upon the respondent’s failure to comply with the bankruptcy notice.
The respondent was served with the creditor’s petition on 28 August, 2019. The petition came before a registrar on 19 September, 2019 and was adjourned to 10 October, 2019 to allow the respondent to obtain legal advice and file any grounds of opposition and any affidavit material to be relied upon by him. He was ordered to pay the costs thrown away by the adjournment.
In the evening of 9 October, 2019 the respondent lodged for filing grounds of opposition and an affidavit he had sworn on 8 October, 2019 but he did not serve either document on the applicants prior to the hearing on 10 October, 2019. When the matter came before a registrar that day, the respondent sought another adjournment on the basis that he said he had further material to file. The application was not dealt with immediately, but when it was, the respondent sought that the petition be heard by a judge of the Court. It was subsequently listed before me for hearing on 27 November, 2019.
On 26 November, 2019 the respondent filed three affidavits but did not serve them on the applicants.
The grounds of opposition
In his notice filed on 10 October, 2019 the respondent specified the following grounds of opposition (faithfully reproduced):
1. The Respondent has a claim against the Applicants that exceeds the amount owing in the cost order used by the Applicants in this petition. The claim against the Applicants is based on the grounds listed hereunder.
2. The Applicants are not entitled to the cost order as claimed due to the following:
a) The Applicants misrepresented information in the trial that led to the costs order upon which this petition is based. The conduct of the Applicants that has led to the cost order against the Respondent, constitutes fraud, collusion and a miscarriage of justice.
b) Information regarding one specific Mr Peter Thompson, integral to the adverse cost order being used in this petition was deliberately misrepresented. Mr Thompson’s oral testimony is one ground upon which this petition will be opposed.
c) In the matter at hand, the representation of the Applicants by the same legal representatives at the constitutes a Conflict of Interest, a factor compounded by the inhouse counsel for the Applicants being the legal advisor to several key witnesses at trial.
d) The Second Applicant did not incur or pay the costs claimed in the cost order and misrepresented information about the patient Peter Thompson in the trial.
e) The Applicants have been responsible for vexatious notifications, and other bullying and untoward action and reprisals against the Respondent for the reporting of safety issues at Gympie Hospital.
3. Section 52 of the Bankruptcy Act 1966 empowers this Court to “go behind the judgment” in the trial that has led to the Respondent’s claimed indebtedness and to dismiss the Applicants’ petition if sufficient cause exists for a sequestration order not to be made. This Court is a Court of Equity and the principles of Equity must be a consideration in any such petition such as this.
4. The Applicants’ actions up to now, including the bringing of this petition, amounts to a series of reprisals in terms of the Public Interest Disclosure Act, because of the Respondent having made a Public Interest Disclosure about safety at Gympie Hospital in 2012.
5. The sequestration of the Respondent would disadvantage all the Respondents creditors, including the First Applicant as the employer of the Respondent.
6. The 1st Applicants employees, and the second Applicant, have carried out reprisals against the Respondent which have resulted in a significant reduction of the Respondent’s earnings since 2012 and a significant amount of stress and anguish.
7. Sections 14, 15 and 16 of the Federal Circuit Court Act 1999 entitles the Respondent to all remedies that he is entitled to in respect of a legal or equitable claim properly brought forward by him in this matter, and for all issues between the parties to be fully ventilated and finally determined before this Court.
Consideration
The respondent argues that he has a “claim against the Applicants that exceeds the amount owing in the cost order used by the Applicants in this petition”. That claim appears to have at least four bases.
First is that the judgment in the District Court defamation proceedings was obtained by fraud, collusion or is a miscarriage of justice and that infects the subsequent costs judgment: grounds 2(a) and 2(b) and to some extent 2(d) of his notice of opposition.
Second is that the applicants’ solicitors were vexed by a conflict of interest because not only did they act for the applicants, they also acted for some of the witnesses who gave evidence in the trial: grounds 2(c) of his notice of opposition.
Third is that the second applicant did not incur or pay the costs claimed in the cost order: ground 2(d) of the notice of opposition.
Fourth, is the ground that the applicants have been responsible for reprisals against the respondent for his conduct: grounds 2(e), 4, 6 and perhaps 7 of the notice of opposition.
Additionally, I think, the respondent argues that this Court should go behind the District Court judgment made at the defamation trial because it was obtained by fraud, collusion or is a miscarriage of justice.
As to the first matter, I am not satisfied that the judgment in the District Court defamation proceedings was obtained by fraud, collusion or is a miscarriage of justice and that infects the subsequent costs judgment. Robertson DCJ was the trial judge in those proceedings. The basic facts of the matter recited by his Honour in his reasons set the scene. I reproduce those relevant parts of that recitation now:
[1] The plaintiff was employed at the Gympie Hospital as a doctor in November 2008. He had trained and qualified as a medical practitioner in South Africa. He is also a qualified lawyer admitted to practice as a barrister in South Africa; and he has completed a law degree in Australia.
…
[3] The plaintiff became a Senior Medical Officer (SMO) in May 2009. At all material times he worked in the Emergency Department of the Hospital.
[4] On 28 January 2008, the second defendant, also an overseas trained doctor, commenced work as a PHO at the hospital predominantly in the Emergency Department. It is common ground that soon after he commenced employment she met the plaintiff at work. They had a cordial and professional relationship and did not socialise outside the workplace.
…
[6] In or around July/August 2010, as a result of a dispute over an Exercise Stress Test (EST) at the Hospital, Dr Hanelt obtained opinions from the Director of Cardiology at Nambour Hospital, and a cardiologist at Prince Charles Hospital. The nature of this dispute is not relevant except to the extent that the plaintiff (apparently as a result of professional disputes about the results from this test) referred Dr Hanelt and six other doctors to the Australian Health Practitioner Regulation Agency (AHPRA) under the notification provisions of the Health Practitioner Regulation National Law Act 2009 (“the Act”). The notifications were not acted upon by AHPRA.
[7] In October 2010, the plaintiff suffered a needle stick injury in the course of his employment, as a result of which he was off work at the Hospital on sickness or other leave and/or workers compensation benefits for a lengthy period. He did return to work at Gympie Hospital in the Emergency Department for a number of shifts, but by 24 August 2012 he was no longer employed at the Gympie Hospital, but was working part-time at the Bundaberg Hospital and in a general practice in Gympie.
…
[9] On 24 August 2012, Mr Peter Thompson, who was then a patient of the plaintiff in his general practice, presented at Gympie Emergency without any referral letter or prior phone call from the plaintiff, and was seen at around 3.38 by the second defendant. Her notes (made at the time or soon after) indicate that she was told by the patient he had been told by his GP “to present to ED for 4 units of blood transfusion as his Hb is 87”.
[10] The second defendant accessed the patient’s hospital records, which indicated he suffered from a number of significant pathologies including anaemia. She undertook her own examination and took a current history, and undertook some tests and, by reference to the National Health and Medical Research Council Clinical Practice Guidelines on the Use of Blood Components then in force, she advised the patient that a blood transfusion was not indicated. At the request of the patient, she contacted the plaintiff by telephone and they had a conversation which is at the heart of these proceedings. After this conversation the second defendant arranged for three other SMOs (Drs Lindeman, Monk and Aung Ne) to review the patient and they confirmed her clinical decision.
[11] The patient returned to the hospital the following day and was seen by another doctor and admitted and transfused with 1 unit of blood and discharged on 27 August 2012. The patient was seen again on 11 December 2012 at the Emergency Department. The clinical notes4 state (relevantly) “initially he demanded he is better off to be transferred to NGH because our big boss does not like his GP (did not name names)”. This doctor (a PHO) spoke with the second defendant.
[12] On that date she forwarded a Notification to AHPRA relating to the contact with the plaintiff on 24 August 2012 and the 11 December 2012 visit by Mr Thompson. The plaintiff was made aware of the notification and, on 5 January 2013 issued a Concerns Notice to the plaintiff pursuant to s 14 of the Defamation Act 2005.
A bankruptcy court may accept a judgment as sufficient proof of a debt owed by a debtor to a creditor but is not bound to do so. It may go behind the judgment so as to determine if a debt is truly owed by the debtor to the creditor: Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132. In that case, the plurality (Kiefel CJ, Keane and Nettle JJ) said (footnotes omitted):
68. For the purposes of s 52 of the Act, a judgment may usually be taken to be sufficient evidence of a debt in that a judgment against a debtor in favour of a creditor obtained after a trial is, generally speaking, a reliable indication of the true state of indebtedness as between creditor and debtor. Indeed, such a judgment can usually be expected to provide the most reliable statement of the debt humanly attainable because the ordinary processes of the adversarial system provide a practical guarantee of reliability. The testing of the relative merits of a claim and counterclaim under the rigours of adversarial litigation will usually establish the true state of accounts as between the parties to the proceedings. Accordingly, a Bankruptcy Court will usually have no occasion to investigate whether the judgment debt is a true reflection of the real debt. But where the merits of a claim and counterclaim have not been tested in adversarial litigation, a judgment debt will not have this practical guarantee of reliability.
The respondent argues that the decision in the defamation trial was procured by fraud, collusion and is a miscarriage of justice because there was collusion in one of two ways, namely,
a)between the second applicant and other doctors wih whom she consulted on the day that a patient, Mr Peter Thompson, presented to the hospital for a blood transfusion; and
b)between the second applicant and witness called by the defendants to the defamation proceedings.
The respondent argues that the creditor’s petition is a reprisal action against him in a series of reprisals to punish him for having made a “Public Interest Disclosure” about the misrepresentation of safety issues at Gympie Hospital. “It is an abuse of process and represents the extreme extent of corporate bullying within the medical fraternity”.
The respondent argues that the evidence of the second applicant in the defamation proceedings about her consultation with and treatment of Mr Thompson, was “false and has been refuted by Mr Thompson. Mr Thompson is available to appear and give oral evidence as to the testimony given about him by Dr George to the District Court”.
The observations and treatment of Mr Thompson on the relevant day was a central aspect of the proceedings in the District Court. Many of the facts concerning the second respondent’s consultation with and treatment of Mr Thompson were the subject of a formal admission by the respondent: Naidoo at [38] – [39]. The evidence accepted by Roberston DCJ was that the second respondent had examined Mr Thompson and made notes (at [37], [39] – [40]), had formed an opinion about what was required (at [41]), had spoken to the respondent about her opinion (at [41] – [42]) and after that conversation had her clinical assessment confirmed by three other doctors (at [49]).
The respondent’s case is that the second applicant concocted her evidence, together with others, for the purposes of harming him. That was a theme of his case in the District Court as Robertson DCJ recorded:
Did the second defendant consult with others about the notification?
[45] This issue is relevant to the defences pleaded and to malice. I have referred earlier to 6(g) of the Reply in which the plaintiff alleges that the second defendant made the notification maliciously. From the outset, he has asserted that she was improperly influenced to make the notification by other doctors and/or employees of the SCHHS as a reprisal against him for raising safety concerns about the hospital (the EST incident) and the complaints about the lack of CT Scanning facilities and understaffing (2009), and under-reporting of SAC1 and SAC2 events, which he referred to the CMC in 2012. It is common ground that as well as the CMC, he has made complaints to or instituted proceedings in, the Anti-Discrimination Commission and the Queensland Industrial Relations Commission, and has made a Public Interest Disclosure to Queensland Health in 2012.
The respondent argues that the second applicant’s notification to APRHA upon which he sued in the District Court was as a result of collusion and malice on the part of a number of doctors and that the second applicant had no genuine basis upon which to make such a notification about him. That was one of the critical aspects of the case in the District Court. It was decided against the respondent.
He has put before this Court evidence from Mr Peter Thompson and his son (who accompanied him to the Gympie hospital on the relevant day). That evidence suggests that the second applicant did not consult with Mr Thompson at all and that the consultation was undertaken by a “junior doctor”. But all that evidence demonstrates is that Mr Thompson has a different recollection of the relevant events. He does not identify the “junior doctor” and indeed gives no evidence that he could distinguish between the second applicant and any other female doctor on duty at the time. His son’s evidence is to similar effect. There is no explanation from the respondent as to why he did not call evidence from the Thompsons at his trial.
Moreover, the evidence does not establish, nor is it capable of establishing in my view, the collusion, fraud or miscarriage of justice alleged by the respondent. Nor does it deal with the critical issues, and in particular the issue of malice, that were determined in the applicants’ favour by Roberston DCJ.
The petitioning creditors argue that there are two separate and distinct judgments here: one is the trial judgment; the other is the costs order, by which the respondent was ordered to pay the applicants’ costs in the amount assessed.
The second order, the order upon which the bankruptcy notice is based, is only impeachable to the extent that it might be infected with the difficulties identified by the respondent with the primary judgment in the defamation proceedings. The respondent recognises that in paragraph 2(a) of his notice of opposition. What the respondent is asking the Court to do, in terms and in effect, is to go behind the judgment in the defamation proceedings.
A similar situation confronted the Federal Court of Australia in Kitay, in the matter of Frigger (No.2) [2018] FCA 1032. In that case, in litigation between the petitioning creditor and the debtors, a costs order was made following an unsuccessful interlocutory application by the debtors. Those costs were assessed and an order was issued for the payment. The costs were not paid and a creditor’s petition was eventually presented for the sequestration of the debtors’ estates. On the hearing of the petition, the debtors invited the court to apply what was said in Ramsay Health Care and go behind the judgment to examine whether a debt was truly owing by them to the petitioning creditor. The trial judge refused to do so and analysed matter in the following way:
31. The present case is concerned with a failure to pay the assessed amount pursuant to a costs order made in proceedings where the assessment takes effect as a judgment.
32. An award of costs is discretionary, but must be exercised judicially, that is according to relevant considerations and taking account of the contextual features and facts of the litigation: Kazar (Liquidator) v Kargarian; In the matter of Frontier Architects Pty Ltd (In Liq) [2011] FCAFC 136; (2011) 197 FCR 113 at [4]. Settled principle guides the exercise of the discretion: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [38]. Generally, the discretion is exercised in favour of the successful party: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at [25]. So, a cost order usually follows the event, but need not do so.
33. If the event is success on a monetary claim then proof of a debt arising from the costs order may be said to require proof of the underlying debt because costs follow the event on that claim. It is not necessary to consider whether this is so in this instance because the claim before Master Sanderson did not involve the adjudication of any claim in debt, or indeed any claim to a monetary award of any kind. Rather, the costs order relied upon by the petitioning creditors forms part of a judgment in proceedings in which orders were made concerning a confidential affidavit. The costs order is not any part of a determination in respect of an underlying debt.
34. The result is that the debt relied upon by the petitioning creditors has no antecedent aspect in the sense that arose in the cases to which I have referred. Rather, the claimed liability was brought into existence solely by the costs order. Then the quantum of the debt was established by the assessment made by the Registrar in taxing the bill presented to the court. Upon that assessment a judgment in the assessed amount was brought into existence by operation of O 66 r 57 of the Rules of the Supreme Court.
35. So, the petitioning creditors in this case do not rely upon the judgment of Master Sanderson to prove an underlying debt. They rely upon the making of the order and the assessment of the bill of costs presented pursuant to that order as the debt. Accordingly, care must be taken in simply assuming the existence of a broad jurisdiction to ‘go behind’ the decision of the court in which the costs order was made on the basis of the line of authorities considered in Ramsay Health Care. The question is whether a debt has been proved, not whether there should be some review of the exercise of the discretion to make the indemnity costs order or a reconsideration of the assessment undertaken on taxation of the bill of costs presented pursuant to that order.
The analogy with the present case is obvious. Here, the petitioning creditor does not rely upon any antecedent debt established by the litigation between the petitioning creditor and the respondent. That litigation concerned no alleged pre-existing debt. The relevant debt is established by the order that was made following the assessment of costs. Such an order takes effect as a judgment of the court pursuant to the operation of the Uniform Civil Procedure Rules 1999 (Qld).
I accept the petitioning creditors’ submission that the question for the Court is whether a debt has been proved, not whether there should be some review of the exercise of the discretion to make the costs order in the first place or a reconsideration of the costs assessment that led to the order the subject of the bankruptcy notice. Nor is it appropriate to embark upon a litigation of issues already determined in prior proceedings: Ramsay at [54] and Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 at [49].
Even assuming it is permissible to examine the District Court proceedings and the findings made in that case for the purposes of determining if the Court should go behind the costs assessment, the respondent has not established a case for doing so. All that he has shown is that he might have presented different evidence that bore on one aspect of the case before the District Court.
Insofar as the costs order is concerned, the evidence shows that the applicants caused a costs statement to be prepared and then served upon the respondent by email and post on 23 January, 2018. The respondent did not serve a notice of objections or otherwise respond. The assessment of the applicants’ costs proceeded as a default costs assessment and an order was made on 5 April, 2018 appointing a costs assessor. The applicants served the order on the appointed costs assessor on 26 April, 2018 and copied the respondent to that correspondence. The costs assessor proceeded to write to both parties giving his directions for the assessment. The respondent was copied on all correspondence exchanged between the applicants and the costs assessor throughout the process. The costs assessor issued his certificate of assessment to the parties on 7 August, 2018. The costs order was made on 17 August, 2018 and the applicants served the costs order on the respondent on 21 August, 2018. The respondent did not request written reasons from the costs assessor and did not bring any application for a review of the costs assessor’s decision.
The second matter pointed to by the respondent to assert a claim against the applicants is an asserted conflict of interest on the part of the petitioning creditors’ solicitors. It was argued that the solicitors not only acted for the petitioning creditors in the District Court proceedings, but also acted for witnesses in that proceeding. However, how that demonstrates a conflict of interest is not at all clear. In any event, even if the respondent could demonstrate a conflict of interest in the way for which he contends, it does not demonstrate the existence of any duty owed by the applicants’ solicitors to the respondent, the breach of which would sound in damages or compensation on his behalf.
The respondent argues that the second respondent has “not incurred any legal costs and her proceeding with a bankruptcy petition looking for costs incurred by her, is malicious and a misrepresentation. Dr George and Gympie Hospital have had all their legal costs paid by the Queensland Government Insurance Fund”. However;
a)the costs certificate and the costs order are both evidence that the applicants have each incurred costs in these proceedings. As explained in Kitay at [36] – [41] (albeit in relation to a different jurisdiction) the assessment process involves the determination of the costs to be paid under an order and the existence of a debt represented by those costs; and
b)to the extent that the applicants’ costs have been paid by the Queensland Government Insurance Fund, the Fund is subrogated to the rights of the applicants in respect of the debt.
I asked both parties to provide further written submissions on this point having regard to the decision of the Full Court of the Federal Court of Australia in Lowbeer v De Varda [2018] FCAFC 115. However, as explained in Cristovao v Tan & Tan Lawyers Pty Ltd 16 ABC(NS) 123; [2018] FCAFC 41, that the petitioning creditors’ costs might have been paid by a third party pursuant to an obligation to indemnify them for those costs, is no answer to a creditor’s petition based upon a judgment for those costs: Cristovao at [37] – [44]. The distinction between Lowbeer on the one hand and Cristovao on the other was explained in Cristovao v Registrar Trott [2019] FCAFC 88 at [28].
The unchallenged evidence of Breanne Gail Vincent (see her affidavit filed on 26 November, 2018) is that the petitioning creditors were insured by the Queensland Government Insurance Fund and were entitled to indemnity from that fund. There is nothing in the point sought to be made by the respondent that because the insurer has paid the relevant costs, there is no debt owing to the petitioning creditors.
The respondent asserts that he has a claim for “reprisals” by the applicants against him in contravention of the Public Interest Disclosure Act 2010 (Qld). It is clear, and the respondent’s oral submissions to me confirmed, that his initial proceedings in the District Court contained claims for reprisal against the applicants. Those claims were struck out during interlocutory skirmishes between the parties. They were plainly claims that the respondent could have and did unsuccessfully attempt to raise in the District Court proceedings. They do not constitute good cause for not making a sequestration order.
The respondent argues that the making of a sequestration order would be contrary to the interests of his other creditors. However, apart from a general statement that “I have four individual creditors in Australia to whom I owe more money each than is claimed by the Applicants. A forced sequestration disadvantages all of these creditors, including the Australian Tax Office, Wespak (sic) Bank and several others.” there are no details of his creditors or the amounts owed to them. There is no evidence about how those other creditors would be prejudiced if a sequestration order was made.
The respondent argues that he is solvent. His evidence is:
22. The majority of my assets are in South Africa tied up in mining shares and equity. The value of the equity far exceeds all debts in Australia and South Africa. The release of equity is complex and dependent on South African Legislation governing the ownership and sale of mining equity.
23. I am a Director of several companies in South Africa and Australia. A significant amount of the income I will earn over the next few years will be Director’s remunerations. An involuntary sequestration will disadvantage all of my creditors with the forced relinquishing of potential income earning positions.
That evidence, without more, is insufficient to establish that the respondent is solvent.
I find that the respondent committed an act of bankruptcy on 21 February, 2019 when he failed to comply with a bankruptcy notice served on him on 31 January, 2019. He was served with the creditor’s petition on 28 August, 2019. No issue is taken with service.
Paragraphs 1, 2, 3 and 4 of the Creditor’s Petition have been verified in the way required by the Bankruptcy Act. I find that the debt claimed by the petitioning creditors is still owing. The respondent has not paid any of it. The other formal requirements of the Act have been met.
It is appropriate to make a sequestration order against the estate of the respondent.
The applicants seek a lump sum order for costs in accordance with a statement of costs and disbursements filed by the applicants on 26 November, 2019 (which includes the adjournment costs awarded by Registrar Belcher on 19 September, 2019 and the adjournment costs reserved by Registrar Lynch on 10 October, 2019). I have considered that statement. The costs claimed therein are appropriate.
I make orders accordingly.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 24 December, 2019
Associate:
Date: 24 December 2019
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