The Owners - Strata Plan No. 69405 v Azizova

[2005] FCA 1340

FEDERAL COURT OF AUSTRALIA

The Owners – Strata Plan No. 69405 v Azizova [2005] FCA 1340

THE OWNERS – STRATA PLAN NO. 69405 v FLORA AZIZOVA

NSD237 OF 2005

EMMETT J
6 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD237 OF 2005

BETWEEN:	THE OWNERS - STRATA PLAN NO. 69405 APPLICANT
AND:	FLORA AZIZOVA RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	6 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The petition filed on 8 February 2005 be dismissed. 

2.The respondent pay the petitioner’s costs of the petition and the costs of the motion for review under s 35A(6), other than the costs of 23 August 2005. 

3.The respondent pay the Trustee’s costs up to and including today.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD237 OF 2005

BETWEEN:	THE OWNERS - STRATA PLAN NO. 69405 APPLICANT
AND:	FLORA AZIZOVA RESPONDENT

JUDGE:	EMMETT J
DATE:	6 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application for review, under s 35A(6) of the Federal Court of Australia Act 1976 (‘the Act’), of an order made by a Deputy Registrar of the Court.  By the order, the estate of Ms Flora Azizova was sequestrated on the petition of the owners Strata Plan No. 69405.

2. Ms Azizova sought review of that order on 4 August 2005.  The review came before Sackville J on 23 August 2005.  His Honour adjourned the matter to a Registrar to yesterday’s date, when the matter was again adjourned, to today, for hearing before the Duty Judge.  In the meantime, during the course of yesterday, the debt upon which the petition was based was paid in full by Ms Azizova.

3. When the matter came on for hearing today, the solicitor for the petitioner indicated that he was not in a position to prove, as at today, the matters required by s 52 of the Bankruptcy Act 1966 (Cth) (‘the Act’).

4. There may be a question as to the precise effect of the requirement that a review under s 35A(6) of the Act is a hearing de novo.  The intimation that is to be gleaned from Martin v Commonwealth Bank of Australia (2005) 217 ALR 634 is that, on the hearing of the review, the evidence should be up to the date of the hearing, indicating that as at the date of hearing there is still a debt owing to the petitioner.

5. In the circumstances, it is not appropriate that I express any firm view on that question, one way or the other.  The petitioner does not oppose an order dismissing the petition, subject to appropriate orders for costs being made.

6. In the circumstances, since it is open to the Court on hearing the petition on its merits to order that it be dismissed on the ground that the debt has been paid, I propose to take that course.  However, the petitioner has been put to the expense of bringing the petition, and the Trustee in Bankruptcy, appointed on 18 July 2005 has, no doubt, incurred some costs in the administration of the estate.  The appropriate course, in my view, is to order that the petition be dismissed and that Ms Azizova pay the petitioner’s costs of the petition, other than the costs of 23 August 2005.  An adjournment was necessary because of a desire on the part of the petitioner to make further inquiries as to the precise basis upon which submissions were to be made.  Ms Azizova should also pay the Trustee’s costs up to today.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             21 September 2005

Solicitor for the Applicant:	J.S. Mueller & Co
The Respondent appeared in person.
Date of Hearing:	6 September 2005
Date of Judgment:	6 September 2005