Toumazou v Housing Guarantee Fund Ltd

[2007] FMCA 1571

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TOUMAZOU v HOUSING GUARANTEE FUND LTD [2007] FMCA 1571

BANKRUPTCY – Petitioning creditor not appropriate respondent – application dismissed. 

Bankruptcy Act 1966, s.153B

Applicant: KYRIACOS TOUMAZOU

Respondent: HOUSING GUARANTEE FUND LTD

File number: MLG 974 of 2007

Judgment of: Burchardt FM

Hearing date: 10 September 2007

Date of last submission: 10 September 2007

Delivered at: Melbourne

Delivered on: 10 September 2007

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Mr C. Morgan

Solicitor for the Respondent: Michael Sandor & Associates

ORDERS

1. That the Application be dismissed. 

2. That the Applicant shall pay the Respondent's costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 974 of 2007

KYRIACOS TOUMAZOU

Applicant

And

HOUSING GUARANTEE FUND LTD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. On 18 July 2007, the Applicant, Mr Toumazou, filed an application in which he sought pursuant to s.153B of the Bankruptcy Act 1966

   
   

   (“the Act”), that the Sequestration Order made by the Court on

   
   

   31 January 2007 against his estate be annulled, and he sought costs. 

   
   

   In fact the Sequestration Order was made on 31 January 2006 by McInnis FM and a copy of the sealed Orders of the Court ordering that a Sequestration Order be made against the estate of Mr Toumazou is before me.  There is no reason for me to assume that it is anything other than what it purports to be. 

2. The application named as the Respondent the Housing Guarantee Fund Ltd which, as I understand the matter, was the Petitioning Creditor in the matter that led to the Sequestration Order made in January 2006. 

   
   

   I have been informed by counsel for the Respondent from the bar table that Gina Anderson of ITSA was appointed as the Trustee and I note that the file shows that on 23 March 2005, the Trustee signed a declaration of consent to act.  It is immediately apparent that

   
   

   Mr Toumazou feels that the entire process whereby his estate was the subject of Sequestration was attended by fraud, dishonesty and the like.  I have not found it altogether easy to follow his narrative which is not solely limited to what is in his affidavit.  There is one thing that is clear, however, and that is that the Petitioning Creditor is not the appropriate Respondent. 

3. In all the circumstances, I think the appropriate step is to dismiss the application.  Should Mr Toumazou wish to issue a proceeding against the appropriate Respondent - namely, his Trustee - he is at liberty to do so.  Should he wish to seek leave to appeal the decision of McInnis FM out of time, he is at liberty to do that as well.  But I do not think that there is any purpose to be served, least of all for Mr Toumazou, in continuing a proceeding against the Creditor which is plainly, in the face of McInnis FM's reasons for decision and order, incompetent. 

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:  Brooke Evans

Date:  10 September 2007