FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SWART v CARR (No.2) | [2008] FMCA 1204 |
| BANKRUPTCY – Sequestration order – judgment debt based on contested Supreme Court proceedings – bankruptcy notice not invalid for referring to debtor’s business name – no grounds for going behind judgment – debtor’s current litigation against third persons not sufficient to establish ability to pay debts – no other sufficient cause to dismiss petition – public interests in not adjourning petition – sequestration order made. |
| Bankruptcy Act 1966 (Cth), ss.52(1), 52(2), 52(2)(a), 52(3), 52(5), 306 |
| Applicant: | DANIEL FREDERICK VICTOR SWART |
| Respondent: | MALCOLM DOUGLAS CARR T/AS FORSHAWS NEILL SOLICITORS |
| File Number: | SYG 250 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 20 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Respondent in person |
| Counsel for the Supporting Creditor: | Mr B Skinner |
| Solicitors for the Supporting Creditor: | Heckenberg Associates |
ORDERS
A sequestration order be made against the estate of MALCOLM DOUGLAS CARR.
All proceedings under the sequestration order are stayed under s.52(3) of the Bankruptcy Act 1966 (Cth) for 21 days, on the following conditions:
(i)that Mr Carr shall deliver all his current passports to his trustee before 4 pm on 21 August 2008, and shall not leave Australia without the permission of his trustee.
(ii)that Mr Carr shall not enter into or incur any new liability exceeding the amount of $5,000, or such other amount as is agreed upon by his trustee.
The applicant creditor’s costs, including all reserved costs, be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
Note that the date of the act of bankruptcy is 21 January 2008.
Note that a consent to act as trustee has been signed by Gavin Frederick Thomas and has been lodged with the Official Receiver in Sydney.
The applicant must within 2 days give a copy of this order to the Official Receiver in Sydney.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 250 of 2008
| DANIEL FREDERICK VICTOR SWART |
Applicant
And
| MALCOLM DOUGLAS CARR T/AS FORSHAWS NEILL SOLICITORS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This bankruptcy petition comes at the end of lengthy…
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- AGLC
- Swart v Carr (No.2) [2008] FMCA 1204
- Case
- [2008] FMCA 1204
- Decision Date
CaseChat Overview and Summary
The court examined the nature of the act of bankruptcy, which in this instance was identified as Carr's failure to comply with a court order. The court determined that Carr had indeed committed an act of bankruptcy, justifying the application for sequestration. Additionally, the court considered the terms proposed by the applicant, which included specific conditions to be met by Carr, such as surrendering his passports and refraining from incurring new liabilities without permission from his trustee. The court also addressed the procedural aspect of the stay of proceedings under section 52(3) of the Bankruptcy Act 1966 (Cth).
The court ruled in favour of the applicant, granting the sequestration order against Carr's estate. The court imposed the conditions outlined in the application, including the surrender of Carr's passports and restrictions on incurring new liabilities. The stay of proceedings was granted for 21 days on the specified conditions. The court also ordered that the applicant's costs, including reserved costs, be paid from Carr's estate in accordance with the Bankruptcy Act 1966 (Cth). The court further noted the date of the act of bankruptcy and confirmed that a consent to act as trustee had been signed and lodged with the Official Receiver in Sydney. Finally, the applicant was directed to provide a copy of the order to the Official Receiver within two days.
Orders
Orders of the court
1.
A sequestration order be made against the estate of MALCOLM DOUGLAS CARR.
2.
All proceedings under the sequestration order are stayed under s.52(3) of the Bankruptcy Act 1966 (Cth) for 21 days, on the following conditions:
(i) that Mr Carr shall deliver all his current passports to his trustee before 4 pm on 21 August 2008, and shall not leave Australia without the permission of his trustee.
(ii) that Mr Carr shall not enter into or incur any new liability exceeding the amount of $5,000, or such other amount as is agreed upon by his trustee.
3.
The applicant creditor’s costs, including all reserved costs, be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
4.
Note that the date of the act of bankruptcy is 21 January 2008.
5.
Note that a consent to act as trustee has been signed by Gavin Frederick Thomas and has been lodged with the Official Receiver in Sydney.
6.
The applicant must within 2 days give a copy of this order to the Official Receiver in Sydney.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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