TADROS v WAKIM

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TADROS v WAKIM & ANOR [2010] FMCA 601

BANKRUPTCY – Application to set aside bankruptcy notice – application for leave to reopen case to adduce further evidence after judgment reserved.

Bankruptcy Act 1966 (Cth), ss.40, 52

Bing! Software Pty Ltd v Bing Technologies Pty Limited (No.2) [2008] FCA 1761
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
Murray v Figge (1974) 4 ALR 612

Applicant: ANTHONY TADROS

First Respondent: JOSEPH WAKIM

Second Respondent: RITA WAKIM

File Number: SYG 568 of 2010

Judgment of: Barnes FM

Hearing date: 29 July 2010

Delivered at: Sydney

Delivered on: 29 July 2010

REPRESENTATION

Solicitors for the Applicant: Morgan Ardino & Co

Counsel for the Respondents: Mr Robinson

Solicitors for the Respondents: Cambridge Law

ORDERS

1. The application to reopen the case in accordance with paragraph 87 of the applicant’s submissions filed on 21 July 2010 is dismissed.

2. The parties have liberty to apply on two (2) days notice.

3. The applicant pay the respondent’s costs of today as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 568 of 2010

ANTHONY TADROS

Applicant

And

JOSEPH WAKIM

First Respondent

RITA WAKIM

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In the substantive proceedings the applicant seeks that a bankruptcy notice be set aside on the basis that he has a counter-claim within s.40(1)(g) of the Bankruptcy Act 1966 (Cth).

2. This is an oral application by the applicant to reopen proceedings after the hearing and while judgment is reserved. The applicant relied on the court’s power to allow evidence to be adduced prior to final determination. The evidence in question is an affidavit of Mr Maurizo Gazzara said to have been sworn on 26 June 2007 in earlier Federal Court proceedings between the parties which were dismissed and which involved causes of action now said to constitute the counter-claim under s.40(1)(g) of the Act.

3. The applicant submitted that this evidence should be considered by the court in relation with the application to set aside a bankruptcy notice on the basis that it was relevant to “wrongdoings” of the respondents towards the applicant and to alleged contributions of the creditors to the applicant’s losses and liabilities.

4. This issue was initially raised in post-hearing written submissions.  No formal application was made for leave to reopen at that time.  I listed the matter so that the issue could be determined.  Leave is now sought to adduce evidence consisting of Mr Gazzara’s affidavit.  The submissions stated that a copy of the affidavit would be made available to the court.  However this has not occurred.

5. Nonetheless, the applicant submitted that the court should give leave to reopen proceedings on the basis that the evidence is relevant and would be persuasive.  It was said to be fundamental to why the debtor was in the position he was now in and to his impecuniosity.  The affidavit is said to make certain allegations about wrongdoing…