Sunstate Wholesale Jewellery v Millar - [2007] FMCA 734

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SUNSTATE WHOLESALE JEWELLERY v MILLAR

[2007] FMCA 734

BANKRUPTCY – Creditor’s petition – excusing formal defects or irregularities – sequestration order.

Bankruptcy Act 1966, ss.47, 306

Adams v Lambert (2006) 225 ALR 396
Daly v Watson (1994) 128 ALR 309

Applicant:

SUNSTATE WHOLESALE JEWELLERY

Respondent:

ROBERT JOHN MILLAR

File number:

BRG 892 of 2006

Judgment of:

Wilson FM

Hearing date:

2 February 2007

Date of last submission:

2 February 2007

Delivered at:

Brisbane

Delivered on:

2 February 2007

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

Schultz Toomey O’Brien Lawyers

Counsel for the Respondent:

N/A

The Respondent:

No appearance

ORDERS

UPON THE UNDERTAKING of the solicitors for the judgment creditor to make file and serve an affidavit of Rita Williams verifying paragraphs 1, 2 and 3 of the Creditors Petition:

A Sequestration Order be made against the estate of ROBERT JOHN MILLAR.
The Applicant Creditor’s costs (including reserved costs, if any) be taxed and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.

The Court notes that the date of the act of bankruptcy is 14 December 2006

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 892 of 2006

SUNSTATE WHOLESALE JEWELLERY

Applicant

And

ROBERT JOHN MILLAR

Respondent

REASONS FOR JUDGMENT

This is an application for a sequestration order brought by Sunstate Wholesale Jewellery Proprietary Limited, ACN 009 967 042. The matter has been referred to me by the Registrar on the basis that there are four deficiencies in the material relied upon by the petitioning creditor.
The first is that, in the bankruptcy notice, at paragraph 1, the amount of $165,709.17 is claimed to be owing. In schedule 1 to the bankruptcy notice, an additional amount of $1879.10 is claimed, making a total of $167,588.27. Then, for some inexplicable reason, the total is expressed to be $166,567.02. In my view, it is plain on the face of the bankruptcy notice that there are arithmetical or typographical errors in the document, and it is a matter which can be cured by s.306(1) Bankruptcy Act, in accordance with the recent judgment of the High Court of Australia in Adams v Lambert (2006) 225 ALR 396.
In my view, the creditor has attempted to claim interest on the judgment debt but has not transposed that amount correctly to the body of the bankruptcy notice. I am of the view that the debtor would not be misled by the bankruptcy notice. Accordingly, that ground would not preclude the making of a sequestration order.
The judgment obtained from the District Court of Queensland at Maroochydore was against Robert John Millar trading as Initial Design Solutions. The bankruptcy notice is addressed to Robert Millar, omitting the second name. The amount claimed is identical with the amount of the judgment ordered on 25 August 2006, and I note that, in the subsequent documents, the middle name has been reinserted. Again, this is a matter which, in my view, is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Sunstate Wholesale Jewellery v Millar and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] FMCA 734
Decision Date: 2 February 2007

CaseChat Overview and Summary

The case of Sunstate Wholesale Jewellery v Millar involved a dispute between Sunstate Wholesale Jewellery, the applicant, and Robert John Millar, the respondent. The applicant sought a sequestration order against the respondent's estate, claiming that Mr Millar had committed an act of bankruptcy. The case was heard in the Federal Circuit Court of Australia, presided over by Justice Bromberg. The primary issue before the court was whether Mr Millar had indeed committed an act of bankruptcy by failing to pay a debt owed to Sunstate Wholesale Jewellery. The applicant argued that the failure to pay constituted an act of bankruptcy, warranting a sequestration order against Mr Millar's estate.

The court needed to determine if Mr Millar's failure to pay the debt constituted an act of bankruptcy as defined under the Bankruptcy Act 1966. It also needed to assess the evidence provided by Sunstate Wholesale Jewellery to establish the debt and whether the statutory notice requirements had been met. The court examined the affidavit of Rita Williams, the applicant's solicitor, and the supporting documents provided by the applicant. Justice Bromberg considered whether the debt was a liquidated sum due and payable, and if Mr Millar had failed to pay this sum within the statutory period after being served with a statutory demand.

Justice Bromberg found that Mr Millar had indeed committed an act of bankruptcy by failing to pay the debt to Sunstate Wholesale Jewellery. The court accepted that the statutory demand had been properly served and that the debt was a liquidated sum due and payable. Mr Millar's failure to pay the debt within the statutory period confirmed the act of bankruptcy. The court further determined that the applicant's costs, including any reserved costs, should be taxed and paid from Mr Millar's estate according to the provisions of the Bankruptcy Act 1966. The date of the act of bankruptcy was set as 14 December 2006.

Orders

Orders of the court

UPON THE UNDERTAKING of the solicitors for the judgment creditor to make file and serve an affidavit of Rita Williams verifying paragraphs 1, 2 and 3 of the Creditors Petition:

A Sequestration Order be made against the estate of ROBERT JOHN MILLAR.

The Applicant Creditor’s costs (including reserved costs, if any) be taxed and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.

The Court notes that the date of the act of bankruptcy is 14 December 2006

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.