Szumylo v Ixia Pty Ltd

[1999] FCA 1270

FEDERAL COURT OF AUSTRALIA

Szumylo v Ixia Pty Ltd [1999] FCA 1270

ANDREW MICHAEL SZUMYLO v IXIA PTY LTD (ACN 007 891 518)

S 7148 OF 1999

MANSFIELD J
20 AUGUST 1999
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 7148 OF 1999

BETWEEN:	ANDREW MICHAEL SZUMYLO Applicant
AND:	IXIA PTY LTD (ACN 007 891 518) Respondent
JUDGE:	MANSFIELD J
DATE:	20 AUGUST 1999
PLACE:	ADELAIDE

REASONS FOR DECISION

HIS HONOUR:

1. The applicant was made bankrupt by sequestration order made on 26 July 1999.  He has applied for an order that that order be stayed “until it is reviewed”.  The grounds upon which the application is made, as specified in the application, are that the statement of claim in SG 3033 of 1997 is grossly inaccurate and inflated; that the drafting of a defence was not possible at the time of the original judgment; and that actions against the respondent have been lodged in the Industrial Relations Court and with the Superannuation and Insurance Commission and that the amounts involved are in excess of the amount deemed to be owed to the respondent.

2. In support of that application there has been filed a brief affidavit of Mr Szumylo which I have considered.  It does not contain evidence that he is solvent.  It does not contain evidence sufficient to satisfy me that his claims in the Industrial Relations Court, and to the Superannuation and Insurance Commission, even if they are successful, would result in amounts being recovered in excess of his present indebtedness to his creditors.  It does not explain why those claims cannot be pursued by his trustee notwithstanding his bankruptcy.  Indeed, it tells me virtually nothing about the nature of those claims, or the circumstances in which they arise.  If they are proceeded with, and produce sufficient funds to pay his creditors, he will be entitled to a discharge of his bankruptcy.

3. Further, the affidavit does not indicate that the original judgment upon which the sequestration order was made is or has been challenged in any way by proceedings in any court, except that it asserts that in some respects the amount of the judgment was incorrectly calculated.  It does not assert that there is no indebtedness to the respondent, who I understand was the petitioning creditor when the sequestration order was made.

4. Even if I had jurisdiction to set aside or suspend the operation of the sequestration order, I do not think the circumstances shown would justify it.

5. In addition, as Mr White of counsel for the respondent has pointed out, s 37(2) of the Bankruptcy Act 1966 (Cth) expressly provides that, notwithstanding the Court’s general power to rescind, vary or discharge any order made by it under that Act, or to suspend the operation of such an order, the Court does not have power to rescind or discharge or suspend the operation of a sequestration order.

6. I have heard no argument from the applicant that, notwithstanding that provision, I have power to make the order which he seeks.  It was not necessary to do so, because even if I did have such power I would not exercise it.  However, that provision stands as a significant additional obstacle to his present application.

7. In my view the application must be dismissed.  I order that the applicant pay the respondent costs of the application to be taxed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Dated:             13 September 1999

Counsel for the Applicant in SG 3033 of 1997

and the Respondent in S 7148 of 1999:

Mr J White

Solicitors for the Applicant in SG 3033 of 1997

and the Respondent in S 7148 of 1999:

Thomson Playford

Mr A M Szumylo appears in person

Date of Hearing:

20 August 1999

Date of Decision:

20 August 1999