Stratco (NSW) Pty Limited v Misiarek
[2004] FMCA 256
•27 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STRATCO (NSW) PTY LIMITED v MISIAREK | [2004] FMCA 256 |
| BANKRUPTCY – Contested creditor’s petition – application in the Local Court to set aside default judgment supporting the bankruptcy notice and creditor’s petition – need for an adjournment of the hearing of the creditor’s petition pending the resolution of the Local Court proceedings. |
| Applicant: | STRATCO (NSW) PTY LIMITED |
| Respondent: | GEORGE MISIAREK |
| File No: | SZ2532 of 2003 |
| Delivered on: | 27 April 2004 |
| Delivered at: | Sydney |
| Hearing date: | 27 April 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr J Johnson |
| Solicitors for the Applicant: | Sally Nash & Co |
The respondent appeared in person
ORDERS
The hearing of the creditor’s petition is adjourned until 10.15am on 13 July 2004.
The respondent is to provide 14 days notice in writing to the solicitor for the petitioning creditor of any intended disposition or encumbrance of his assets to a value of $5,000 or more.
Parties have liberty to apply for further orders on three days notice.
Costs are reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ2532 of 2003
| STRATCO (NSW) PTY LIMITED |
Applicant
And
| GEORGE MISIAREK |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me a creditor's petition filed on 21 November 2003. The petition is opposed by the respondent debtor, Mr Misiarek, by notice filed on 27 February 2004. There is only one ground of opposition to the petition and that is that Mr Misiarek has filed a notice of motion in the Local Court seeking to set aside the judgment debt, which was a default judgment.
The notice of intention to oppose is unusual in that the notice says that it is filed by a solicitor, Tony Vella, giving his address for service but the base of the document states that it was filed by Mr Misiarek himself. On 18 February 2004 Mr Misiarek presented to the registrar a notice of appearance with his own address and also the name and address of his solicitor. There has been some debate about whether and to what extent the respondent debtor has been represented by his solicitor, Tony Vella. He has not attended on all occasions that the matter has been before the Court and he is not in attendance today. Mr Misiarek told me from the bar table that Mr Vella still acts for him.
The formal requirements for the making of a sequestration order have been met. The only issue is whether Mr Misiarek should be given a further opportunity to attack the judgment on which the debt is based. I received into evidence a record of proceedings before the Local Court which discloses that Mr Misiarek filed a notice of motion to set aside the default judgment in the Local Court which was refused by a registrar on 8 April 2004.
However, Mr Misiarek has evidently filed a second notice of motion to set aside the default judgment on 19 April 2004. The record of proceedings also shows that on 22 April 2004 the matter came before a registrar and a hearing date has been allocated of Thursday, 8 July 2004. Mr Misiarek attended court today without any documents and on the basis of the material before me, I would not be minded to go behind the judgment supporting the bankruptcy notice and the creditor's petition. Mr Misiarek told me a lot of things from the bar table and made serious allegations against the solicitor and counsel for the petitioning creditor.
However, I have no evidence supporting those allegations and I had no basis for any belief that there may be any substance to them. Mr Misiarek has, however, been able to persuade the Local Court to allocate a hearing date for his second motion to set aside the default judgment. He told me that there were difficulties on the day when his first motion was dismissed. There may be some substance in that. It would, in my view, be unsafe to make a sequestration order today prior to Mr Misiarek having that further opportunity given to him by the Local Court.
Given that there is only one ground of opposition to the creditors petition, I would expect that if Mr Misiarek is unsuccessful on this second attempt in the Local Court, there would be no further opposition to the creditor’s petition. There is a mischief in delaying the final resolution of the creditor’s petition. That mischief is that Mr Misiarek, if he wished, would have an extended opportunity to dispose of assets to the detriment of his creditors. It is appropriate that the Court should deal with that mischief during the period of the adjournment. There is also an issue of the significant costs that have been incurred and will need to be further incurred because the matter has come before this Court on a number of occasions and several adjournments have been granted.
If it ultimately appears that there was no substance to the attack upon the judgment debt that issue of substantial costs will need to be dealt with and the manner in which these proceedings have been conducted by or on behalf of Mr Misiarek will need to be dealt with. I would expect that if the matter comes before me again and if Mr Misiarek is still represented by Mr Vella, Mr Vella would appear on his behalf. There may be an issue which requires resolution of whether any costs liability, which would otherwise fall on Mr Misiarek, should in fact fall on Mr Vella. That can await another occasion.
I will adjourn the hearing of the creditor’s petition until 10:15am on Tuesday, 13 July 2004. I will also order that Mr Misiarek provide 14 days notice in writing to the solicitor for the petitioning creditor of any intended disposition or encumbrance of his assets to a value of $5,000 or more and I will give the parties liberty to apply on three day's notice. I will reserve costs of today's hearing. I will adjourn temporarily so that the orders can be printed and I will then sign them and have them entered and provided to the parties.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 April 2004
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