Suncorp Metway Advances Corporation Pty Ltd v Benson
[2009] FMCA 961
•15 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SUNCORP METWAY ADVANCES CORPORATION PTY LTD v BENSON | [2009] FMCA 961 |
| BANKRUPTCY – Petition – whether petition against a debtor who claims he was not aware of the District Court proceedings in which judgment was obtained should be dismissed. |
| Bankruptcy Act 1966, s.52 Federal Magistrates Court (Bankruptcy) Rules 2006 |
| Applicant: | SUNCORP METWAY ADVANCES CORPORATION PTY LTD ACN 100 845 127 |
| Respondent: | IAN BENSON |
| File Number: | SYG 374 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 15 September 2009 |
| Date of Last Submission: | 15 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 15 September 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Lincoln Smith & Company |
| For the Respondent: | In person |
ORDERS
A sequestration order be made against the estate of Ian Benson.
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.
Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.
THE COURT NOTES:
(i)That the date of the act of bankruptcy is 15 December 2008.
(ii)A consent to act as trustee has been signed by Peter Geroff and has been lodged with the Official Receiver in Sydney.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 374 of 2009
| SUNCORP METWAY ADVANCES CORPORATION PTY LTD ACN 100 845 127 |
Applicant
And
| IAN BENSON |
Respondent
REASONS FOR JUDGMENT
In this matter, the debtor has filed a notice of opposition in respect of the application for a sequestration order. He is effectively asking me to go behind the judgment upon which the bankruptcy notice was founded. It would appear that Mr Benson was a broker in a company known as Benson Finance Pty Limited, whose principal was his son. He arranged finance for a company known as Cool-Dip Pty Limited from the petitioning creditors. It seems that there were three finance lease agreements between the petitioning creditor and Cool-Dip and each of those was intended to be guaranteed by three other persons or entities who later became the second, third and fourth defendant in certain District Court proceedings.
Mr Benson purported to witness the signature of the second defendant in those proceedings upon two of the three finance agreements. When the first defendant ceased making its payments under the finance agreements and was sued, a Mr Sangha, the second defendant, argued in his defence that it was not his signature which appeared on the guarantees. In those circumstances the company for which Mr Benson worked and Mr Benson himself were joined in the proceedings. It was alleged that Mr Benson was negligent in not ensuring that the signature that he purported to witness was, in fact, the signature of Mr Sangha and that he had made representations to the finance company that this was Mr Sangha’s signature. Mr Benson accepts that he did not see Mr Sangha sign the document.
Mr Benson and the company were first represented by a firm of solicitors, but on 17 January 2008 that firm filed a notice with the District Court advising it that Mr Benson no longer wished to be represented by the firm. At a directions hearing on 15 February 2008 it is said that the court noted that it had been informed that Mr Benson did not wish to take any further part in the proceedings.
The proceedings were listed for hearing on 31 March 2008. Mr Annis-Brown, who appears for the petitioning creditor, informed me that his firm advised Mr Benson of that hearing date. Mr Benson denies this. Mr Annis-Brown informs me that the decision of the court in the judgment of 1 April 2008 was also provided to Mr Benson, but Mr Benson denies this.
At the hearing, Rolfe DCJ accepted the evidence of Mr Sangha that it was not he who signed the guarantee agreements and then gave judgment in favour of Suncorp Metway against the Benson company and Mr Benson personally. That judgment was annexed to the bankruptcy notice numbered NN2519/08 served upon Mr Benson on 24 November 2008.
Even if Mr Benson was not aware of the hearing, and was not aware of the decision of Rolfe DCJ prior to that time, he was clearly made aware of it upon service of the bankruptcy notice. He has taken no steps to seek a setting aside of the judgment in the District Court because, he says, he has not been advised to do so and is unable to pay for legal advice. Whilst I fully accept that it is not easy for persons who are impecunious to obtain advice or to know what to do in cases of this nature, the fact is that Mr Benson was operating in a fairly sophisticated field. He is alleged to owe a very substantial amount of money $248,536.64 odd, and has presented to me today as an articulate and intelligent respondent. In those circumstances, I am unable to accede to his request that I dismiss the petition. I propose to hear Mr Annis-Brown on the various matters of which I am required to be satisfied pursuant to s.52 of the Bankruptcy Act 1966 (the “Act”).
I am satisfied that the respondent has 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 Act. I make a sequestration order against the estate of Ian Benson. 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. Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days. The court notes the date of the act of bankruptcy is 15 December 2008 and I note the Consent to Act as Trustee has been signed by Peter Garroff and has been lodged with the Official Receiver in Sydney.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 30 September 2009
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