FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VAN DER MUNNIK v STEWART (CORRIGENDUM) | [2010] FMCA 116 |
| BANKRUPTCY – Creditor’s petition – whether bankruptcy notice based on a final judgment or order – whether to go behind judgment – whether the notice of an extension of time to serve the bankruptcy notice was served on the debtor – effect of reference to non-existent regulation in ITSA Form – whether service effected when bankruptcy notice left in letterbox for home unit at the last-known address for service. |
| Bankruptcy Act 1966 (Cth), ss.40, 41, 44, 52, 84, 306 Bankruptcy Regulations 1996 (Cth), regs.4.02, 4.02A, 16.01 |
| Applicant: | YVONNE VAN DER MUNNIK |
| Respondent: | MICHAEL STEWART |
| File Number: | SYG 1772 of 2009 |
| Judgment of: | Barnes FM |
| Hearing dates: | 24 November, 25 November, 10 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 24 February 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Gor |
| Solicitors for the Applicant: | Watkins Tapsell |
| Respondent: | In person |
ORDERS
A sequestration order be made against the estate of Michael Stewart.
The applicant creditor’s costs (including reserved costs, if any) be taxed in accordance with the Federal Court Rules and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
A copy of this order is to be provided to the Official Receiver in Sydney within two (2) days.
The Court notes that the date of the act of bankruptcy is 9 June 2009.
CORRIGENDUM
Judgment delivered by Barnes FM 24 February 2010 as [2010] FMCA 116
In paragraph [62] of the Reasons for Judgment the following “[Street Address],” should read “at the address specified in Mr Thurston’s affidavit in”.
_____________________________________________________________________I certify that the preceding one (1) paragraphs are a true copy of the Corrigendum to the Judgment…
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- AGLC
- Van der Munnik v Stewart [2010] FMCA 116
- Case
- [2010] FMCA 116
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether an act of bankruptcy had indeed occurred and whether the applicant had satisfied the requirements under the Bankruptcy Act 1966 (Cth) to seek a sequestration order. The court had to examine the evidence provided by Van der Munnik regarding the judgment debt and Stewart's failure to comply with the payment terms. Additionally, the court needed to consider whether any defences presented by Stewart were valid or sufficient to prevent the granting of the order.
Barnes FM found that the evidence presented by Van der Munnik was sufficient to establish that Stewart had committed an act of bankruptcy by not satisfying the judgment debt. The court noted that Stewart had not provided any credible evidence to rebut the claim or demonstrate a genuine dispute regarding the debt. Consequently, the court ruled in favour of Van der Munnik, ordering a sequestration of Stewart's estate. The court also directed that Van der Munnik's costs be taxed and paid from Stewart's estate in accordance with the relevant legislation. A corrigendum was issued to correct a minor error in the address specified in the reasons for judgment.
Orders
Orders of the court
1.
A sequestration order be made against the estate of Michael Stewart.
2.
The applicant creditor’s costs (including reserved costs, if any) be taxed in accordance with the Federal Court Rules and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
3.
A copy of this order is to be provided to the Official Receiver in Sydney within two (2) days.
The Court notes that the date of the act of bankruptcy is 9 June 2009.
CORRIGENDUM
Judgment delivered by Barnes FM 24 February 2010 as [2010] FMCA 116
1.
In paragraph [62] of the Reasons for Judgment the following “[Street Address],” should read “at the address specified in Mr Thurston’s affidavit in”.
_____________________________________________________________________I certify that the preceding one (1) paragraphs are a true copy of the Corrigendum to the Judgment [2010] FMCA 116 of Barnes FM.
Associate:
Date: 4 March 2010
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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