Symons v Bateman

[1999] FCA 658

FEDERAL COURT OF AUSTRALIA

Symons v Bateman [1999] FCA 658

BANKRUPTCY – sequestration order – creditor’s petition – application to set aside sequestration order made in absence of applicants – Trustee claiming entitlement to remuneration – appropriateness of order under O 35 r 7 – alternative procedure under s 153B – annulment – incidental protective provision s 154.

Federal Court Rules O 35 r 7

Bankruptcy Act 1966 s 153B, s154

Daskalovski v The Austral Brick Company Pty Ltd (unrep Fed Court 23 June 1998) followed

DAVID HUGH SYMONS and THAM SYMONS v MALCOLM JAMES BATEMAN and GEOFFREY AUBREY LOPEZ

W 7017 OF 1999

FRENCH J
17 MAY 1999
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W7017 OF 1999

BETWEEN:

DAVID HUGH SYMONS and THAM SYMONS
Applicants

AND:

MALCOLM JAMES BATEMAN
First Respondent

GEOFFREY AUBREY LOPEZ
Second Respondent

JUDGE:

FRENCH J

DATE OF ORDER:

17 MAY 1999

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The application is adjourned to a date to be fixed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W7017 OF 1999

BETWEEN:

DAVID HUGH SYMONS and THAM SYMONS
Applicants

AND:

MALCOLM JAMES BATEMAN
First Respondent

GEOFFREY AUBREY LOPEZ
Second Respondent

JUDGE:	FRENCH J
DATE:	17 MAY 1999
PLACE:	PERTH

REASONS FOR DECISION ON CONSENT AND ASSOCIATED ORDERS

1. On 8 February 1999 sequestration orders were made against David Hugh Symons and Tham Symons on the petition of Malcolm James Bateman.  The act of bankruptcy relied upon was the Symons failure to comply with a Bankruptcy Notice issued by Mr Bateman.  The Bankruptcy Notice, which was served on 11 September 1998, made demand for payment of a judgment debt, being damages for defamation which had been assessed against the Symons in the Supreme Court at $32,612.18.  That assessment which followed upon a summary judgment was made by Anderson J on 18 August 1998.

2. The creditor’s petitions were filed and served on 22 October 1998.  On their first return date of 23 November 1998 they were adjourned to 21 December 1998.  At that time there were applications pending in the Full Court by the Symons seeking review of a Master’s decision refusing their application for leave to appeal against the judgment and for an extension of time within which to appeal.  According to Mr Metaxas, who represents the Symons, he was told by Mr Goodlet, representing Mr Bateman, on 16 December 1998 that there was to be an “armistice” until the Full Court of the Supreme Court dealt with the applications for review of the Master’s decision.  It should be noted there was other litigation pending between the parties at this time which is not necessary to refer to for present purposes.

3. According to Mr Metaxas on the morning of 20 December 1998, which was a Sunday, he spoke by telephone to Mr Goodlet and asked if Mr Bateman was proceeding with the bankruptcy petitions…