Stratco (NSW) Pty Ltd v Misiarek (No.2)
[2004] FMCA 449
•13 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STRATCO (NSW) PTY LTD v MISIAREK (No.2) | [2004] FMCA 449 |
| BANKRUPTCY – Creditor’s petition – whether any judgment debt exists – judgment debt unsuccessfully challenged by the debtor in the NSW Local Court – debtor seeking leave to appeal to the NSW Supreme Court – insufficient reasons advanced to further delay a sequestration order. |
Bankruptcy Act 1966 (Cth), s.52
Bankruptcy Regulations
Stratco (NSW) Pty Limited v Misiarek [2004] FMCA 256
| Applicant: | STRATCO (NSW) PTY LTD |
| Respondent: | GEORGE MISIAREK |
| File No: | SZ2532 of 2003 |
| Delivered on: | 13 July 2004 |
| Delivered at: | Sydney |
| Hearing date: | 13 July 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr J Johnson |
| Solicitors for the Respondent: | Sally Nash & Co |
ORDERS
A sequestration order be made against the estate of George Misiarek.
The petitioning creditor’s costs, including reserved costs, if any, be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).
The Court notes that, under the Bankruptcy Regulations, a copy of this order is to be given to the Official Receiver in Sydney within two days after the order is entered.
The Court notes that the date of bankruptcy is 29 October 2003.
Pursuant to s.52(3) of the Bankruptcy Act, proceedings under order 1 be stayed for a period of 21 days following these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ2532 of 2003
| STRATCO (NSW) PTY LTD |
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 previously came before me on 27 April 2004. At that time I satisfied myself that, subject to the one issue of opposition raised by the debtor in his notice of opposition to the creditor's petition, it would be appropriate to make a sequestration order. The one issue of opposition raised by the debtor, Mr Misiarek, was that he disputed the default judgment which had been made against him in the Local Court. It was the default judgment which supported the bankruptcy notice subsequently served on him, which had not been satisfied, and which led in turn to the creditor's petition.
The issues generally I dealt with in written reasons in the decision of Stratco (NSW) Pty Limited v Misiarek [2004] FMCA 256 and I do not need to repeat them in any detail here. Suffice to say that I was satisfied on that day that, although Mr Misiarek had had an opportunity to have set side the default judgment in the Local Court and had failed, he had raised serious issues concerning the propriety of actions undertaken by the creditor and that he should be given a second opportunity, which he was then in the course of exercising, to seek in the Local Court to have that default judgment set aside.
I therefore adjourned the hearing of the creditor's petition until today to allow those further proceedings in the Local Court to be completed.
I received today on behalf of the creditor three affidavits. One is a further affidavit of debt by Ian Burns made on 12 July 2004 simply updating the search undertaken on behalf of the creditor. The other two affidavits made on 12 July 2004 by Kylie Britton deal with a search of the insolvency index which updates an earlier affidavit and also deal with what happened in the Local Court.
I accept from that affidavit, and it is not disputed by Mr Misiarek, that on 8 July 2004 Mr Misiarek's notice of motion to set aside the default judgment was heard by Magistrate Dillon in the Local Court. Mr Misiarek was represented by a solicitor, Mr Vella, on that occasion. The motion was dismissed and Mr Misiarek was ordered to pay $450 in costs. It follows that he has failed for a second time to have the default judgment set aside.
Mr Misiarek is no longer represented by Mr Vella in these proceedings. Mr Vella filed a notice of ceasing to act on 20 May 2004. Mr Misiarek appeared on his own behalf today and presented a form of summons in the Supreme Court of New South Wales and a supporting affidavit filed earlier today in that Court, in which Mr Misiarek is seeking leave to appeal from the decision of the Local Court dismissing his motion. As has been pointed out by Mr Johnson in his submissions, there is no stay on the decision of the Local Court pending the consideration of leave.
I have read Mr Misiarek's affidavit and summons and I have heard him at some length this morning orally. He continues to assert that the creditor behaved improperly in the proceedings leading to the default judgment. He asserts that he has not received justice in the Local Court and he wishes to pursue the matter further. He is, of course, entitled to that view but he has not persuaded me that there is any reason to further delay the making of a sequestration order.
Today for the first time Mr Misiarek told me that he has no dispute with the money claimed by the creditor and asserts that he has the capacity to pay the debt he owes. He seeks time to make that payment. He has not previously raised solvency as an issue and I have no evidence of solvency. He appears to me to be a man who feels deeply about the issues leading to the default judgment. I accept what he says that he does not dispute the underlying debt and he is prepared to pay it.
There is nothing before me that would persuade me that he is currently solvent but I am prepared to give him the opportunity that is open to me to give him under the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) to pay the debt before steps are taken under the sequestration order that I will make. I am satisfied that the debtor committed the act of bankruptcy alleged in the petition. I am satisfied with the proof of the other matters which s.52(1) of the Bankruptcy Act requires proof.
I make a sequestration order against the estate of George Misiarek.
I order that the petitioning creditor's costs, including reserved costs if any, be taxed and paid in accordance with the Bankruptcy Act. I note that under the Bankruptcy Regulations a copy of these orders is required to be given to the Official Receiver in Sydney within two days after the order is entered. I note from the creditor's petition that the date of the act of bankruptcy is 29 October 2003. Finally, I will order that proceedings under the bankruptcy be stayed for a period of 21 days following these orders. That will give Mr Misiarek the opportunity to make good on his expressed intention to discharge the debts he owes. If he is unable to do so then the necessary steps under the sequestration order will proceed.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 July 2004
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