Suncorp Metway Insurance Limited v Piccone

[2005] FMCA 73

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SUNCORP METWAY INSURANCE LIMITED v PICCONE [2005] FMCA 73

BANKRUPTCY – Application for annulment of bankruptcy.

Bankruptcy Act1966, ss.5, 55, 153B, 303
Federal Magistrate Court Rules, Part 45
Motor Vehicle Insurance Act, s.552
Motor Vehicle Insurance Regulations (1968), Regs. 13(2)(a), 17

Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589
Ozer v Australian Liquor Marketers Pty Ltd v Pascoe (Unreported) FCA 5 October 1999
Delph Sing v Wood (1918) 25 CLR 497
March v Tregurza (1963) 109 CLR 1
McDonald v Official Trustee [1999] FLC 1303
Layton v Westpac Banking Corporation (2000) 181 ALR 603
Re Mottee; ex parte Mottee v The Official Receiver (1977) 29 FLR 406
Re Heenan; ex parte Cousins v Official Receiver (1992) 39 FLR
Re Moncanda; ex parte Moncanda v Official Receiver (1986) 11 LRR
Sandel v Porter (1966) 115 CLR
Trevaskis v Deputy Commissioner of Taxation (1993) ATC 5037
Ex parte Lakatos v Deputy Commissioner of Taxation (1996) 33 ATC 145
Southern Cross Interiors Pty Ltd v Deputy Commissioner of Taxation (2001) 20 ACLR 1513; 39 ACSR 305

Applicant: SUNCORP METWAY INSURANCE LIMITED

Respondent: MARK PICCONE

File No: BRG273 of 2003

Delivered on: 8 February 2005

Delivered at: Brisbane

Hearing date: 16 December 2003

Judgment of: Rimmer FM

REPRESENTATION

Counsel for the Applicant: Mr Bickford

Solicitors for the Applicant: Walsh Halligan Douglas

Counsel for the Respondent: Mr McQuade

Solicitors for the Respondent: McInnes Wilson

ORDERS

1. That the application be dismissed.

2. That the parties have liberty to apply in relation to costs within 14 days.

AND THE COURT NOTES

1. That the matter was suitable for an advocate pursuant to Rule 21.15

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG273 of 2003

SUNCORP METWAY INSURANCE LIMITED

Applicant

And

MARK PICCONE

Respondent

REASONS FOR JUDGMENT

Proceedings

1. The Applicant, Suncorp Metway Insurance Limited, seeks an order pursuant to section 153B(1) of the Bankruptcy Act annulling the bankruptcy of the Respondent, Mark Piccone. The Applicant is a person aggrieved within the meaning of section 303 of the Act. The Applicant seeks his annulment on the grounds that the debtor’s petition presented by Mr Piccone on 16 October 2002 ought not to have been presented.

2. The Respondent opposes the application.

3. The Official Trustee in Bankruptcy is the trustee of the Respondent’s bankrupt estate. The requirements of Part 45 of the Federal Magistrates Court Rules have been complied with and the annulment application has been served on the Official Trustee. The affidavit of Paul Frederick Peterson filed 5 December 2003 established that six creditors (including the Applicant) were listed in the debtor’s petition of October 2002 and that all other five creditors have been given the required notice in Form 155 and was served at least 14 days before the hearing date fixed for the application.

The issues

1. The issues for determination are:

   a)Whether the presentation of the debtor’s petition by the Respondent is an abuse of process;

   b)Whether the Respondent was insolvent at the time he presented the debtor’s petition;