Suncorp Metway Advances Corporation Pty Ltd v D. J. Keable
[2010] FMCA 334
•11 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SUNCORP METWAY ADVANCES CORPORATION PTY LTD v D. J. KEABLE | [2010] FMCA 334 |
| PRACTICE & PROCEDURE – Refusal to grant adjournment – where notice of opposition not filed in accordance with the Rules. |
| Federal Magistrates Court (Bankruptcy) Rules 2006, o.2.06 Bankruptcy Act 1966, s.52 Bankruptcy Regulations 1994 |
| Applicant: | SUNCORP METWAY ADVANCES CORPORATION PTY LIMITED ABN 89 100 845 127 |
| Respondent: | DAVID JOHN KEABLE |
| File Number: | SYG 2729 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 11 May 2010 |
| Date of Last Submission: | 11 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Norton Rose Australia |
| Counsel for the Respondent: | Mr C Stomo |
| Solicitors for the Respondent: | Hubbard Commercial Lawyers |
ORDERS
A sequestration order be made against the estate of David John Keable.
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 26 September 2009.
All proceedings under this Order by stayed until 14 May 2010.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2729 of 2009
| SUNCORP METWAY ADVANCES CORPORATION PTY LIMITED ABN 89 100 845 127 |
Applicant
And
| DAVID JOHN KEABLE |
Respondent
REASONS FOR JUDGMENT
There comes before me today an adjourned application for a sequestration order against David John Keable. The sequestration order was presented to the court on 9 November 2009. I did not have an affidavit of service of the creditor's petition but I can assume that it was served because Mr Stomo of Counsel appears on behalf of the debtor. The Registrar's notes indicate that the matter first came before the court on 14 December 2009 when it was adjourned to 8 February. It became before the Registrar again on 8 February and it was adjourned until 1 March. It came before the Registrar on 1 March and was adjourned on the 15 March. It came before the Registrar on the 15 March and was adjourned to the 29 March. It came before the Registrar on the 29 March and was adjourned to 19 April. On 19 April it was adjourned to 3 May. On 3 May it was adjourned to 10 May. On 10 May it was adjourned to the 11 May.
On 10 May there was filed with the court a notice stating grounds of opposition to the application together with an affidavit of Mr Keable. There were three grounds of opposition, the first was that Mr Keable was able to pay his debts, the second was that the sequestration order should not be made for other sufficient cause, the third that the bankruptcy notice was not served as alleged and there was no act of bankruptcy. The affidavit went to the alleged non‑service.
In his affidavit he produces some allegedly corroborative evidence of the fact that he was not present at the place at which service was said to have been effected on the day on which service was claimed to have been effected. Mr Keable states that when he sought legal advice at the end of February concerning the petition he only gave instructions about negotiations for payment, he did not mention that he had not received documents apart from the creditor's petition.
Mr Keable comes to the court today represented, he is not here in person. His counsel asked for an adjournment, this is stridently resisted by those acting for the creditor. The creditor wishes to proceed, it is prepared to proceed on the basis that it would not ask for the cross-examination of Mr Keable, but it does wish to rely on the affidavit of the process server originally filed on 9 November 2009 and on the further affidavit of the process server sworn on 10 May together with another affidavit of a solicitor with the creditor's solicitors sworn on 11 May.
It will be clear from what I have indicated above that the conduct of this matter has been somewhat fraught. Mr Keable has managed to obtain a very large number of adjournments and on none of those occasions did he indicate that he would argue grounds of opposition to the petition that he had not been served with the bankruptcy notice. That first appeared on the 10 May. The debtor presses his application for an adjournment on the basis that he wishes to cross-examine the process server, who is not here today. I understand that no notice requiring him for cross-examination was given.
It seems to me that the court, in a case such as this, should consider first the relevant rules that apply to the situation and upon which I have not been addressed. Rule 2.86 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (the “Rules”) states as follows:
“2.06 Opposition to application, interim application or petition.
(1) In this rule:
Application includes an interim application.
(2) A person who intends to oppose the application or possession must, at least three days before the date fixed for the hearing of the application or the petition, or with the leave of the court at the hearing: (a) file a notice of appearance in accordance with form 4, and; (b) file a notice in accordance with form 5 stating the grounds of opposition; (c) file an affidavit in support of the grounds of opposition; and (d) serve the notices and supporting affidavit on the applicant.”
Today is 11 May. All the documents that I have discussed were filed with the court on 10 May, they have not been filed in time. In the light of the history of this matter set out in these reasons I do not propose to allow them to be admitted. This court’s rules should be complied with. No good reason to order that they not apply has been given. There is therefore no opposition to the petition. I propose to allow Mr Gasic, on behalf of the applicant, to proceed to prove the matters required under s.52 of the Bankruptcy Act 1966 (the “Act”).
I am satisfied the respondent committed the act of bankruptcy alleged in the petition. I am satisfied of the proof of the other matters required by s.52 of the Bankruptcy Act 1966. I make a sequestration order against the Estate of David John Keable. The applicant’s costs, including any reserved costs, be taxed and paid from the estate of the respondent in accordance with the Act. Under the Bankruptcy Regulations a copy of the sequestration order is to be given to the Official Receiver in Sydney within two days. The court notes that the date of the actual bankruptcy is 26 September 2009.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 12 May 2010
0
0
3