THEISSL v Oaktwig Pty Ltd
[2004] FMCA 254
•20 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THEISSL v OAKTWIG PTY LTD | [2004] FMCA 254 |
| BANKRUPTCY – Application to annul sequestration order – where applicant debtor alleges bankruptcy notice & creditors petition never received – where applicant debtor claims to have sufficient assets to satisfy debts – where applicant filed affidavit in support of application but did not file statement of affairs – where applicant seeking legal representation – whether sequestration order should be annulled. |
Bankruptcy Act 1966 (Cth)
| Applicant: | CARMELA THEISSL |
| Respondent: | OAKTWIG PTY LTD |
| File No: | SZ 893 of 2004 |
| Delivered on: | 20 April 2004 |
| Delivered at: | Sydney |
| Hearing date: | 20 April 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Trustee: | Mr B Skinner |
| Solicitors for the Applicant: | Bowles Lawyers Pty Ltd |
| Solicitors for the Respondent: | Webster O’Halloran & Associates |
ORDERS
Application dismissed.
The costs of the Trustee and his legal advisers be paid from the estate of the bankrupt.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 893 of 2004
| CARMELA THEISSL |
Applicant
And
| OAKTWIG PTY LTD |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant has applied to annul a sequestration order made on 1 March 2004. The basis of the application for annulment seems to be that the applicant did not receive the bankruptcy notice or the creditor’s petition and she is able to pay her debts as she has sufficient assets and supporting income. She filed an affidavit in support of that application.
In accordance with his responsibilities, the Trustee Scott Darren Pascoe, filed with the court a report concerning the administration of the estate of the bankrupt to date. That indicates two important matters. Firstly, that the applicant has not filed a statement of affairs and secondly, that she has estimated debts including costs and charges to 13 April 2004 of $217,307 and her assets appear to be represented by a piece of real property at 11 Domain Crescent, Bella Vista which he indicates on verbal advice only has a first mortgage in the sum of $350,000 and what appears to be a second mortgage in the sum of $257,804. It is suggested by the debtor that the property has a value of approximately $850,000.
Mr Pascoe does say that whilst the bankrupt's assets may be sufficient to eventually enable her liabilities to be paid in full, the principal realisable asset is the property which is not realisable within a reasonably short period of time and therefore on the cash flow test the bankrupt is insolvent.
The bankrupt has not appeared today. She has sent along a Mr Platcher who is a consultant. He has told me that the bankrupt intends to employ solicitors to act on her behalf in connection with the matter but I do not think it is appropriate that the application should be adjourned when no statement of affairs has been filed and the situation seems to me to be disadvantageous to the creditors. I note that the Trustee is represented in the matter, as is the petitioning creditor, and I think it is appropriate that I dismiss this application.
The dismissal of one application for annulment does not mean that the applicant cannot make any further applications for annulment properly put and having complied with her obligations under the Bankruptcy Act 1966 (Cth). I dismiss the application. I order that the bankrupt pay the costs of the Trustee and his legal advisers. I order that the costs of the Trustee and his legal advisers be paid from the estate of the bankrupt.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 30 April 2004
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