Strata Plan No 2078 v Hollis
[2005] FMCA 1128
•2 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STRATA PLAN NO 2078 v HOLLIS | [2005] FMCA 1128 |
| BANKRUPTCY – Review of decision of Registrar – where no evidence offered by petitioning creditor. |
| Bankruptcy Act 1966, s.52 |
| Martin v Commonwealth Bank of Australia [2001] FCA 87 Harris & Caladine, In the Marriage of [1991] 172 CLR 84 |
| Applicant: | THE OWNERS - STRATA PLAN NO 2078 |
| Respondent: | ANDREW JOHN HOLLIS |
| File Number: | SYG 1442 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 2 August 2005 |
| Date of Last Submission: | 2 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr E Muston |
| Solicitors for the Applicant: | AWM Dickinson & Son |
| Counsel for the Respondent: | Mr S Golledge |
| Solicitors for the Respondent: | Dobes & Andrews |
| Solicitors for the Official Trustee: | Sally Nash & Co |
ORDERS
Sequestration order against the estate of Andrew John Hollis made on 1 July 2005 be set aside.
Applicant debtor pay respondent creditor’s costs of the proceedings.
Petition dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1442 of 2005
| THE OWNERS - STRATA PLAN NO 2078 |
Applicant
And
| ANDREW JOHN HOLLIS |
Respondent
REASONS FOR JUDGMENT
I have before me an application for review of a decision of Registrar Segal making a sequestration order against the estate of Andrew John Hollis, which order was made on 1 July 2005. In considering an application for review the court is not bound by the evidence filed before the Registrar and looks again at the matter de novo with such evidence as is provided to it at that time. Martin v Commonwealth Bank of Australia [2001] FCA 87; Harris & Caladine, In the Marriage of [1991] 172 CLR 84.
Before me today are the applicant creditor, the debtor and a solicitor for the Public Trustee. The applicant creditor has offered no evidence. The debtor has provided two further affidavits which indicate that he does not appear to be insolvent and that he is able to pay the small debt, which is the subject of the sequestration order, in accordance with arrangements that have been agreed between himself and the creditor. There were no supporting creditors at the hearing of the petition nor are there any here today.
Under the circumstances I propose to grant a review of the decision of the Registrar and to exercise my discretion under s.52 of the Bankruptcy Act 1966 to set aside the sequestration order on the basis of the short minutes of order initialled by me and placed with the papers. The petition will also be dismissed.
I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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