Suncorp Metway Advances Corporation Pty Ltd v M. M. Keable
[2010] FMCA 335
•11 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SUNCORP METWAY ADVANCES CORPORATION PTY LTD v M. M. KEABLE | [2010] FMCA 335 |
| PRACTICE & PROCEDURE – Refusal to grant adjournment where notice of opposition not filed in accordance with the Rules. |
| Farm Debt Mediation Act 1994 Bankruptcy Act 1966, s.52 Federal Magistrates Court (Bankruptcy) Rules 2006, o.2.06 Bankruptcy Regulations 1994 |
| Applicant: | SUNCORP METWAY ADVANCES CORPORATION PTY LIMITED ABN 89 100 845 127 |
| Respondent: | MELISSA MAY KEABLE |
| File Number: | SYG 2727 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 Laywers |
ORDERS
A sequestration order be made against the estate of Melissa May 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 28 September 2009.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2727 of 2009
| SUNCORP METWAY ADVANCES CORPORATION PTY LTD ABN 89 100 845 127 |
Applicant
And
| MELISSA MAY KEABLE |
Respondent
REASONS FOR JUDGMENT
In this matter the debtor seeks an adjournment so that she can raise a possible notice of ground of objection to the presentation of the Bankruptcy Petition under the Farm Debt Mediation Act 1994. She alleges that certain requirements of that Act were not complied with by the respondent. In my judgment in her husband’s application for an adjournment I listed all the times that the matter was previously before the court and on each occasion Mrs Keable’s matter was also mentioned. She has had an equal time to him to have raised this issue but she failed to do so. There is not present in the file a notice of objection although, there is an affidavit which indicates the grounds of objection, which was filed in court this morning before the Registrar. Mrs Keable has not complied with the provisions of Order 2.06 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (the “Rules”) which required her to file, at least, three days before the date fixed for hearing, a notice of appearance, a notice of grounds of opposition and an affidavit in support.
Given the number of times in which this matter has been before the court, I do not propose to grant Mrs Keable any indulgence in relation to that rule. Therefore, we will proceed on the basis that there is no grounds of opposition. However, I would point out that there has been tendered to the court, as exhibit 1, a form 5 under the Farm Debt Mediation Act 1994 being a s.11 certificate that the Act does not apply to this particular farm mortgage which is the subject matter of the petition. This certificate is required by a plaintiff before commencing any proceedings in a court to seek recovery of monies owed under certain farm chattel mortgages, of which the one in question is one. So it would seem that the judgment of the District Court which is annexed to the bankruptcy notice was properly obtained, but if Mrs Keable has any problems with it she has most certainly not appealed the decision, nor has she sought that the judgment be set aside, nor has she sought a stay of execution. In those circumstances, I think that my decision in relation to the adjournment is entirely justified.
I am satisfied the Respondent 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 Bankruptcy Act 1966 (the “Act”). I make a sequestration order against the estate of Melissa May Keable. I order that the applicant’s costs, including reserved costs, if any, be paid from the estate of the Respondent in accordance with the Act. Under the Bankruptcy Regulations 1994 a copy of the sequestration order be given to the Official Receiver in Sydney within two days. The court notes the date of the act of bankruptcy is 28 September 2009.
I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 12 May 2010
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