Steinhoff Asia Pacific Limited v Pryke

[2010] FMCA 124

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STEINHOFF ASIA PACIFIC LIMITED v PRYKE [2010] FMCA 124

BANKRUPTY – Hearing of Petition – application for adjournment – where Supreme Court has declined to set aside judgment on which bankruptcy notice was based.

Bankruptcy Act 1966, s.52

Pryke v Steinhoff Asia Pacific Limited [2009] FMCA 380

Applicant: STEINHOFF ASIA PACIFIC LIMITED

Respondent: MARK PRYKE

File Number: SYG 1108 of 2009

Judgment of: Raphael FM

Hearing date: 16 February 2010

Date of Last Submission: 16 February 2010

Delivered at: Sydney

Delivered on: 16 February 2010

REPRESENTATION

Counsel for the Applicant: Mr S B Loughnan

Solicitors for the Applicant: Hennessey & Co

Counsel for the Respondent: Mr M Gunning

ORDERS

1. A sequestration order be made against the estate of Mark Pryke. 

2. The applicant creditor’s costs (including any reserved costs) be taxed (in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006) and paid from the estate of the Respondent Debtor in accordance with the Act.

3. Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.

THE COURT NOTES:

1. That the date of the act of bankruptcy is 7 March 2009.

2. A consent to act as trustee has been signed by Hugh Charles Thomas and has been lodged with the Official Receiver in Sydney.

Provided the bankrupt files a Statement of Affairs with his Trustee on or before 23 February 2010 all proceedings under this order be stayed until 2 March 2010.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1108 of 2009

STEINHOFF ASIA PACIFIC LIMITED

Applicant

And

MARK PRYKE

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me today, having been adjourned on 15 December to await a decision of Schmidt J of the Supreme Court of New South Wales on the debtor’s application to set aside the judgment which founded the bankruptcy notice.  Shortly before the hearing on 15 February 2010 there was filed in this court a notice of withdrawal as lawyer from Mr Liu, who had been appearing on behalf of the debtor.  However, when the matter came before me this morning, Mr Gunning of Counsel appeared on behalf of the debtor and sought a further adjournment.  Mr Gunning told me that Schmidt J had handed down her decision on 18 December 2009 dismissing the application to set aside the judgment which had been given by Registrar Bradford.  Mr Gunning informed me that he had been told by the debtor that a notice of intention to appeal had been lodged although I do not have a copy of that notice and I do not know the date upon which the lodgement was made.

2. The effect of a notice of intention to appeal filed within 28 days of a judgment is to allow the time for appeal to be extended to a period of three months of the date of the judgment.  It does not constitute, in itself, an appeal.  Mr Gunning asks, on behalf of the debtor, for a further period of three weeks during which time he hoped that the debtor would be able to produce a notice of appeal.  He did not indicate to me what the grounds of appeal might be save that he indicated that there was some concern, in his mind at least, at the jurisdiction of the Registrar to make the order which was the subject matter of the proceedings.  The concern I have with that argument is that the whole of the judgment of Schmidt J was a discussion of the order that had been made by Registrar Bradford including a section on whether that order was irregular.  Whilst the Registrar’s jurisdictional ability was apparently not discussed I do not think that I would be wrong in taking the view that an appeal upon this basis has scant prospects of success.

3. Mr Gunning also referred to his client’s cross‑claim.  The obligation of the debtor arose from his guarantee of a company that had entered into a Freedom furniture franchise.  The cross‑claim to which Mr Gunning referred was considered by me in my decision Pryke v Steinhoff Asia Pacific Limited [2009] FMCA 380 on 21 April 2009. But no cross-claim has yet been filed almost a year later. And whilst Mr Gunning alludes to some medical reasons for his client’s failure to take any steps in relation to this cross‑claim I have no evidence about it other than some references to the matter in the judgment of Schmidt J.

4. The applicant creditor has a judgment that was entered on 27 October 2008.  He did not take steps to enforce that judgment by way of the issue of a bankruptcy notice until 19 January 2009 and the debtor then sought to have that bankruptcy notice set aside.  After I refused to set aside the bankruptcy notice the debtor took the step of seeking to set aside the original judgment.  Whilst this was going on the creditor presented a petition on 7 May 2009.  I am not clear, from the papers before me when that petition was served, but I notice that a notice of appearance was not filed until 27 October.  When the matter came before me for hearing I gave the adjournment requested so that the debtor would have an opportunity to have the judgment set aside.  Now that that has failed the situation remains that there is a judgment of the Supreme Court of New South Wales that has not been satisfied upon which the creditor is entitled to petition.  There is no stay on that judgment nor, so far as I am aware, has any stay been applied for.  I believe, in the circumstances, that there would be little utility in providing another adjournment for approximately three weeks so that the question of the appeal can be further considered.  And I therefore propose to allow the creditor to proceed upon the petition.

5. I am satisfied the respondent committed the act of bankruptcy alleged in the petition. I am satisfied with the proof of the other matters required by s.52 of the Bankruptcy Act 1966 (the “Act”). 

   (1)I make a sequestration order against the estate of Mark Pryke. 

   (2)The applicant creditor’s costs (including any reserved costs) be taxed (in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006) and paid from the estate of the Respondent Debtor in accordance with the Act.

   (3)Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.

THE COURT NOTES:

ii)That the date of the act of bankruptcy is 7 March 2009.

iii)A consent to act as trustee has been signed by Hugh Charles Thomas and has been lodged with the Official Receiver in Sydney.

Provided the bankrupt files a Statement of Affairs with his Trustee on or before 23 February 2010 all proceedings under this order be stayed until 2 March 2010.

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

Associate: 

Date:  24 February 2010