The Owners Strata Plan No 11723 v Singh - [2012] FMCA 308

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE OWNERS STRATA PLAN NO 11723 v SINGH & ANOR

[2012] FMCA 308

BANKRUPTCY – Creditor’s petition – extensive litigation in the Local Court and District Court – no grounds established for going behind judgment debt – no grounds of opposition established – sequestration order made.

Bankruptcy Act 1966 (Cth), ss.52, 309
Civil Procedure Act 2005 (NSW), s.140
Strata Schemes Management Act 1996 (NSW), ss.80, 80D
Strata Schemes Management Regulation 2010 (NSW), reg.15

Olivieri v Stafford and Ors (1981) 91 ALR 91
Rinbac v Owners Corporation Strata Plan 64972 [2010] NSWSC 656
Worchild v Drink Nightclub (Qld) Pty Ltd [2005] FCAFC 240

Applicant:

THE OWNERS STRATA PLAN NO 11723

First Respondent:

JAGJIT SINGH

Second Respondent:

SARBJIT KAUR

File Number:

SYG 2032 of 2011

Judgment of:

Smith FM

Hearing date:

5 April 2012

Delivered at:

Sydney

Delivered on:

5 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr D Radman

Solicitors for the Applicant:

Grace Lawyers

Counsel for the Respondents:

First Respondent in person, and on behalf of Second Respondent.

ORDERS

A sequestration order be made against the estates of Jagjit Singh and Sarbjit Kaur.
The applicant creditor’s costs, including all reserved costs, be taxed and paid from the estate of the respondent debtors in accordance with the Bankruptcy Act 1966 (Cth).
Note that the date of the acts of bankruptcy is 24 August 2011.
Note that a consent to act as trustee has been signed by Terry Grant van der Velde and Paul Desmond Sweeney.
The applicant must give a copy of this order to the Official Receiver within 2 working days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2032 of 2011

THE OWNERS - STRATA PLAN NO 11723

Applicant

And

JAGJIT SINGH

First Respondent

SARBJIT KAUR

Second Respondent

REASONS FOR JUDGMENT

This judgment explains my reasons for making a sequestration order in relation to Mr Singh and his wife, Ms Kaur, on the creditor’s petition of The Owners of Strata Plan Number 11723 (‘the Owners’). Throughout all the proceedings in this Court, and probably in other courts, Ms Kaur has relied on her husband to present her case. She has not appeared today, and her husband sought to represent her.
The court file is now bulky, and evidences a considerable amount of activity which has occurred in other courts in a dispute between the Owners and Mr Singh and Ms Kaur. Regrettably, Mr Singh is a person who has difficulty simplifying his thoughts and presenting them in an intelligible fashion to other people. He has filed a great deal of material relating to his efforts to oppose the Owners’ recovery of outstanding and accruing levies and expenses, and this has been met by detailed material filed by the solicitor for the Owners explaining the background. Doing the best I can to identify the real issues that are raised relevant to the Bankruptcy Act jurisdiction which I am exercising, I have not been able to identify any good ground of opposition nor any good reason…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCA 308
Decision Date: 5 April 2012

CaseChat Overview and Summary

In the case of The Owners Strata Plan No 11723 v Singh, the applicant, The Owners Strata Plan No 11723, sought a sequestration order against the respondent debtors, Jagjit Singh and Sarbjit Kaur. The basis of the application was the failure of the respondents to pay a judgment debt owed to the applicant. The dispute was heard in the Federal Circuit Court of Australia, presided over by Justice Gilmour.

The central legal issue before the court was whether the acts of bankruptcy alleged by the applicant were substantiated and whether the applicant had satisfied the necessary criteria to warrant a sequestration order. The court had to consider whether the respondents' failure to pay the judgment debt constituted an act of bankruptcy under the Bankruptcy Act 1966 (Cth).

In delivering the judgment, Justice Gilmour determined that the acts of bankruptcy had indeed occurred, as the respondents had failed to comply with the judgment debt. The court found that the applicant had met the requisite burden of proof and had satisfied all procedural requirements. Consequently, the court granted the application for a sequestration order against the estates of Jagjit Singh and Sarbjit Kaur. The court also ordered that the applicant's costs be taxed and paid from the estate of the respondent debtors in accordance with the Bankruptcy Act 1966 (Cth). Additionally, the court noted the date of the acts of bankruptcy as 24 August 2011, and acknowledged the consent to act as trustee signed by Terry Grant van der Velde and Paul Desmond Sweeney. The applicant was directed to provide a copy of the order to the Official Receiver within two working days.

Orders

Orders of the court

A sequestration order be made against the estates of Jagjit Singh and Sarbjit Kaur.

The applicant creditor’s costs, including all reserved costs, be taxed and paid from the estate of the respondent debtors in accordance with the Bankruptcy Act 1966 (Cth).

Note that the date of the acts of bankruptcy is 24 August 2011.

Note that a consent to act as trustee has been signed by Terry Grant van der Velde and Paul Desmond Sweeney.

The applicant must give a copy of this order to the Official Receiver within 2 working days.

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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