The OWNERS - STRATA PLAN 8857 v Norley

[2004] FMCA 863

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE OWNERS – STRATA PLAN 8857 v NORLEY [2004] FMCA 863

BANKRUPTCY – Sequestration order – whether Sheriff’s correspondence established that a writ of execution was returned unsatisfied.

Bankruptcy Act 1966 (Cth) s.52

Stroud’s Judicial Dictionary (4^th edition)
Federal Court of Australia Act and Rules

Re Ousley; Ex parte Deputy Commissioner of Taxation BC9406040 1 February 1994

Re Worsley; Ex parte Gill (1957) 19 ABC 105

Applicant: THE OWNERS – STRATA PLAN 8857

Respondent: KENNETH RAYMOND NORLEY

File No: SYG2236 of 2004

Delivered on: 16 November 2004

Delivered at: Sydney

Hearing date: 16 November 2004

Judgment of: Raphael FM

REPRESENTATION

Solicitors for the Applicant: Warren McKeon Dickson

ORDERS

1. Sequestration order against the estate of Kenneth Raymond Norley be made.

2. Robert William Whitton of level 27, The Chifley Tower, 2 Chifley Square, Sydney, New South Wales 2000 be appointed trustee.

3. Costs of the applicant be paid from the estate of the bankrupt, to be taxed if not agreed, pursuant to the Federal Court of Australia Act and Rules.

4. The applicant to notify Public Trustee of these orders within two days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2236 of 2004

THE OWNERS – STRATA PLAN 8857

Applicant

And

KENNETH RAYMOND NORLEY

Respondent

REASONS FOR JUDGMENT

1. This matter has been referred to me by the Registrar for consideration of an application for a sequestration order against Kenneth Raymond Norley.  The application, which is an amended application filed on 1 September 2004, claims that the relevant act of bankruptcy was the return of a writ of execution in the sum of $49,764.68, unsatisfied, on 21 June 2004.

2. It is fair to say that the creditor had some difficulty in obtaining from the sheriff's office confirmation of the return of the writ, unsatisfied, on that date.  I have been provided with affidavits exhibiting a number of letters from the office of the sheriff, the final one of which is dated

   
   

   15 November 2004, it makes a reference to an earlier letter and says:

   “We refer to our letter of 30 September 2004 and confirm that the writ was returned unsatisfied on 21 June 2004.”

3. I am assisted in my consideration of whether or not this satisfies the requirements of the Bankruptcy Act 1966 (Cth) (the “Act”) that by the judgment of Hely J in Re Ousley; Ex parte Deputy Commissioner of Taxation BC9406040 1 February 1994.  On page 4 of the reasons for judgment which I have, His Honour deals with the question of whether a warrant has been returned unsatisfied and notes that a return to a writ is a defined in Stroud’s Judicial Dictionary as:

   “ A certificate from the proper person of what has been done under it.”

   He then refers to Re Worsley; Ex parte Gill (1957) 19 ABC 105 at [107] where Manning J said that a return that:

   “A return to a writ is nothing else but the bailiff's answer touching those matters which the bailiff is commanded to do by the writ ...  Returns to a writ of execution are merely statements of fact.”

4. At page 6 of my copy of the judgment Hely J notes that the irregularity of a return (in the limited sense of what is written by the sheriff on the warrant) is not in his opinion fatal to the establishment of the relevant act of bankruptcy.  He notes that an irregular return can be cured.

5. I am of the view that the first return of 21 June 2004 which was found exhibited to the affidavit of Dean Barry Groundwater of 13 July 2004 as a statement of fact indicates that the writ was unsatisfied.  Even though the words do not say that.  However, by the time 15 November has come along the sheriff makes it quite clear what the situation was in a letter annexed to the affidavit of Craig Prior of 15 November 2004.  In the absence of the debtor, who has been advised of the frequent adjournments of this case and has not yet made an appearance, I am satisfied the correspondence from the sheriff's office constitutes sufficient proof of an act of bankruptcy.

6. I am otherwise satisfied of the matters required under s.52 of the Act. The appropriate affidavits of debt and search have been filed and I note that Robert William Whitton has consented to act as trustee. In those circumstances I make the following orders:

   (1)Sequestration order against the estate of Kenneth Raymond Norley be made;

   (2)Robert William Whitton of level 27, The Chifley Tower,
   2 Chifley Square, Sydney, New South Wales 2000 be appointed trustee;

   (3)Costs of the applicant be paid from the estate of the bankrupt, to be taxed if not agreed pursuant to the Federal Court of Australia Act and Rules;

   (4)The applicant to notify Public Trustee of these orders within two days.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: