Sullivan v Macquarie Leasing Pty Ltd

[2012] FMCA 601

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SULLIVAN v MACQUARIE LEASING PTY LTD [2012] FMCA 601

BANKRUPTCY – Application to set aside substituted service orders and sequestration order of Registrars of the Federal Magistrates Court – where applicant concedes debts owed – where applicant provides no evidence of ability to repay debts – where applicant claims unaware of papers relating to bankruptcy – whether to set aside orders.

Applicant: TIMOTHY MATTHEW SULLIVAN

Respondent: MACQUARIE LEASING PTY LTD

File Number: SYG 1673 of 2011

Applicant: TIMOTHY MATTHEW SULLIVAN

Respondent: MACQUARIE LEASING PTY LTD

File Number: SYG 2399 of 2011

Judgment of: Raphael FM

Hearing date: 2 July 2012

Date of Last Submission: 2 July 2012

Delivered at: Sydney

Delivered on: 2 July 2012

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Douros Jackson Lawyers

ORDERS

1. Application dismissed.

2. Creditor’s costs to be paid from the estate of the bankrupt.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1673 of 2011

TIMOTHY MATTHEW SULLIVAN

Applicant

And

MACQUARIE LEASING PTY LIMITED

Respondent

SYG 2399 of 2011

TIMOTHY MATTHEW SULLIVAN

Applicant

And

MACQUARIE LEASING PTY LIMITED

Respondent

REASONS FOR JUDGMENT

1. There comes before me today an application for review of several orders for substituted service made in respect of a bankruptcy notice and creditor’s petition against the applicant, who has now been made the subject of a sequestration order on 8 June 2012.  The application for a review extends to a review of that sequestration order.

2. Mr Sullivan, who is the applicant bankrupt does not deny that he owes Macquarie Leasing Pty Limited approximately $80,000.00.  He tells me that he is also indebted to the Australian Tax Office in the sum of approximately $30,000.00.  He says that the papers in this matter have never come to his attention, and that Macquarie Leasing were aware of an email address at which they could have sought to serve the proceedings upon him, but did not do so.  He says that if I make the order that he seeks, then he might be able to persuade friends and family to come up with a proposal for settlement of his obligations.  But that information was only given to me by way of a statement from the bar table and has not been deposed to in his affidavit with any particularity as to who may provide this money, and how much they may provide. 

3. Leaving aside the question of time, because the orders of substituted service of the bankruptcy notice and petition were made some considerable time ago, one would be reluctant to set aside the orders when they have been made by Registrars of this court on the basis of affidavits provided to them by process servers.  In this particular case, I have considered the affidavits that were provided, and they seem to me to indicate that the applicant was a resident of the address to which substituted service was directed at the relevant times.  There is evidence of the process server’s that persons in or around the building confirmed that the applicant was resident there.  There is evidence of the process server’s that the managing agents told him that the applicant was resident there. 

4. Given that the debtor accepts that he is obligated to the creditor and that he has other obligations, and given that he advises me that he has no money of his own and that any proposal would have to come from the friends and family, it seems to me that very little benefit would be obtained by setting aside any of the orders that are sought to be set aside.  It is always open to a bankrupt to try and make an arrangement with his creditors through his trustee, and that if such an arrangement is made and accepted by the creditors then the bankruptcy may well be annulled.  If that is what the applicant seeks it can be done in this way, rather than setting aside the bankruptcy, for it only to be re-served upon him and for the orders to be made yet again.  For those reasons, I dismiss the application.  I order that the creditor’s costs be paid from the estate of the bankrupt. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  6 July 2012