Twynam Agricultural Group Pty Ltd v Feldman
[2013] FCCA 1923
•11 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TWYNAM AGRICULTURAL GROUP PTY LTD v FELDMAN | [2013] FCCA 1923 |
| Catchwords: BANKRUPTCY – Creditor’s petitions – where matter previously before the court on four occasions – where, on second occasion before the court, respondents ordered to file and serve any notice of opposition by 9 September 2013 – where no notice of opposition filed – where one respondent claims to have filed appeal against judgment upon which petition founded – whether to accept for filing affidavits with attached notices of objection – whether to grant further adjournment – whether to make sequestration orders. |
| Legislation: Bankruptcy Act 1966 (Cth) s.52 |
| Cases: Rose v Meriton Apartments [2012] FCA 844 Re Lewin and Glasson; Ex parte Milner (1986) ALR 591 |
| Applicant: | TWYNAM AGRICULUTRAL GROUP PTY LTD |
| Respondent: | SHOLOM DOV BER FELDMAN |
| File Number: | SYG 1139 of 2013 |
| Applicant: | TWYNAM AGRICULUTRAL GROUP PTY LTD |
| Respondent: | PNINA FELDMAN |
| File Number: | SYG 1140 of 2013 |
| Applicant: | TWYNAM AGRICULUTRAL GROUP PTY LTD |
| Respondent: | PINCHUS FELDMAN |
| File Number: | SYG 1141 of 2013 |
| Judgment of: | Judge Raphael |
| Hearing date: | 11 November 2013 |
| Date of Last Submission: | 11 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 11 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. Duggan |
| Solicitors for the Applicant: | Gilbert + Tobin Lawyers |
| Counsel for the Respondents: | Mr P Folino-Gallo |
| Solicitors for the Respondent in matter SYG 1139 of 2013: | Pateman Legal |
| Solicitors for the Respondents in matters SYG 1140 of 2013 and SYG 1141 of 2013: | Eddy Neumann Lawyers |
ORDERS
SYG 1139 of 2013
A Sequestration Order be made against the estate of Sholom Dov Ber Feldman.
The Applicant’s costs (including any reserved costs) be taxed and paid from the estate of the Respondent in accordance with the Act
Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.
THE COURT NOTES THAT:
(i)The date of the act of bankruptcy is 24 April 2013.
(ii)A consent to act as trustee has been signed by Andrew John Scott and Scott Darren Pascoe and has been lodged with the Official Receiver in Sydney.
SYG 1140 of 2013
A Sequestration Order be made against the estate of Pnina Feldman.
The Applicant’s costs (including any reserved costs) be taxed and paid from the estate of the Respondent in accordance with the Act
Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.
THE COURT NOTES THAT:
(i)The date of the act of bankruptcy is 1 May 2013.
(ii)A consent to act as trustee has been signed by Andrew John Scott and Scott Darren Pascoe and has been lodged with the Official Receiver in Sydney.
SYG 1141 of 2013
A Sequestration Order be made against the estate of Pinchus Feldman.
The Applicant’s costs (including any reserved costs) be taxed and paid from the estate of the Respondent in accordance with the Act
Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.
THE COURT NOTES THAT:
(i)The date of the act of bankruptcy is 1 May 2013.
(ii)A consent to act as trustee has been signed by Andrew John Scott and Scott Darren Pascoe and has been lodged with the Official Receiver in Sydney.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1139 of 2013
| TWYNAM AGRICULTURAL GROUP PTY LTD |
Applicant
And
| SHOLOM DOV BER FELDMAN |
Respondent
SYG 1140 of 2013
| TWYNAM AGRICULTURAL GROUP PTY LTD |
Applicant
And
| PNINA FELDMAN |
Respondent
SYG 1141 of 2013
| TWYNAM AGRICULTURAL GROUP PTY LTD |
Applicant
And
| PINCHUS FELDMAN |
Respondent
REASONS FOR JUDGMENT
This matter consists of three petitions against three guarantors for debt of a company that has now gone into liquidation. The judgment was entered in the Supreme Court on 13 February 2013, and on 3 April 2013 a bankruptcy notice was served upon Mr Sholom Feldman. On 10 April 2013 bankruptcy notices were served on Pnina Feldman and Pinchus Feldman. On 23 May 2013 creditor’s petitions were filed, and on 28 May 2013 those petitions were served on each of the debtors.
The matter was then listed in this court on 27 June 2013. It was adjourned. A notice of appearance by a firm of solicitors was filed on behalf of Sholom Feldman, and on 25 July a notice of appearance was signed by solicitors on behalf of Pnina and Pinchus Feldman. The matter came back to court on 26 July 2013 when an order was made that any notice of opposition be filed by 9 September 2013. No notices of opposition were filed. On 18 September 2013 an email was sent to the solicitors who act for all three debtors. It stated inter alia:
“As we have not received a notice in opposition in any of the above bankruptcy proceedings or a notice of objection in the winding up proceedings we are proceeding on the assumption that your clients do not intend to file any notices. Please advise us immediately if this assumption is not correct.”
I am informed that no response was received. The matter was then listed in respect of all three debtors in this court on 30 September 2013, and again on 14 October 2013 when it was stood over to today. Mr Folino-Gallo appears on behalf of the respondents and asks for a further adjournment because he says an application has been made by one of the debtors, Mr Sholom Feldman, to set aside the default judgment in the Supreme Court of New South Wales. He says he has affidavits of all three debtors which annexe notices of objection. He asks me to receive the affidavits and to grant the adjournment he seeks, although he does not specific exactly what date he wishes the matter adjourned to. The adjournments are resisted by Mr Duggan on behalf of the applicants.
I have considered what Mr Folino-Gallo has said and, in my view, this is a matter that should now come to resolution. The acts of bankruptcy have been committed. It matters not in theory whether the judgment entered in the Supreme Court is set-aside, and the fact is that the application to set aside this judgment, based as it is upon a guarantee, and made some nine months after the original judgment, cannot have great prospects of success.
This is not an application to extend the time for compliance with the bankruptcy notice. The time for compliance has already expired. And, as I have noted, the act of bankruptcy has been committed. The general view of the law is that in these circumstances the applicant is entitled to proceed on his application for a sequestration order, and that is the course I propose to take: Rose v Meriton Apartments [2012] FCA 844, Re Lewin and Glasson; Ex parte Milner (1986) ALR 591.
I am satisfied that the respondent Sholom Feldman committed the act of bankruptcy alleged in the petition as amended. I am satisfied with the proof of the other matters required by s.52 of the Bankruptcy Act1966 (Cth).[1] I allow the petition to be amended by altering the date of the act of bankruptcy in paragraph 4 of 24 April 2013. I dispense with the requirement to serve the amended petition. I make a sequestration order against the estate of Shalom Dov Ber Feldman. I order that the applicant’s costs, including reserved costs if any, be taxed and paid from the estate of the respondent in accordance with the Act. Under the Bankruptcy Regulations, a copy of the sequestration order be given to the Official Receiver in Sydney within two days. The court notes the date of the act of bankruptcy is 24 April 2013. I note that a consent to act as a trustee has been signed by Andrew John Scott and Scott Darren Pascoe and has been lodged with the Official Receiver in Sydney.
[1] The “Act”.
I am satisfied that the respondent, Pnina Feldman committed the act of bankruptcy alleged in the petition. I am satisfied with the proof of the other matters required by s.52 of the Act. I make a sequestration order against the estate of Pnina Feldman. I order the applicant’s costs, including reserve costs if any, be taxed and paid from the estate of the respondent in accordance with the Act. Under the Bankruptcy Regulations, a copy of the sequestration order be given to the Official Receiver in Sydney within two days. The court notes the date of the act of bankruptcy is 1 May 2013. I note that a consent to act as a trustee has been signed by Andrew John Scott and Scott Darren Pascoe and been lodged with the Official Receiver in Sydney.
I am satisfied that the respondent, Pinchus Feldman, committed the act of bankruptcy alleged in the petition. I am satisfied with the proof of the other matters required by s.52 of the Act. I make a sequestration order against the estate of Pinchus Feldman. I order that the applicant’s costs, including reserve costs if any, be taxed and paid from the estate of the respondent in accordance of the Act. Under the Bankruptcy Regulations, a copy of the sequestration order be given to the Official Receiver in Sydney within two days. The court notes the date of the act of bankruptcy is 1 May 2013. I note that a consent to act as a trustee has been signed by John Andrew Scott and Scott Darren Pascoe and has been lodged with the Official Receiver in Sydney.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Associate:
Date: 21 November 2013
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