Van der Munnik v Stewart

Case [2010] FMCA 116


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
Civil Procedure Act 2005 (NSW), s.133
Evidence Act 1995 (NSW), s.178

Bankruptcy Regulations 1996 (Cth), regs.4.02, 4.02A, 16.01
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), rr.4.05, 4.06
Uniform Civil Procedure Rules 2005 (NSW), r.36.11

Adams v Lambert (2006) 228 CLR 409; [2006] HCA 10
Cain v Whyte (1933) 48 CLR 639; [1932] HCA 6
Carver v de Robillard (2006) 5 ABC(NS) 21http://legalonline.thomson.com.au/director?sid=f2f382f20ade6d037b26c88574278070&&ref=LAWREP-005-ABC(NS)-0021.pdf, [2006] FCA 1041
Clancy v Robinson [2002] FMCA 47
Commonwealth Bank of Australia v Casella [2000] FCA 1518
D.C.T. v Moss (No.2) [2006] FMCA 225
de Robillard v Carver (2007) 159 FCR 38; [2007] FCAFC 73
Ex parte Moore; In re Faithfull (1885) 14 QBD 627
Klinger v Nicholl (2005) 4 ABC(NS) 16; [2005] FCAFC 153
Re Cartwright; Ex parte Cartwright v Barker [1975] 1 WLR 573; 2 All ER 970
Re Ditford; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347; 83 ALR 265
Re Sanders; Knudsen and Yates (t/a The Hargreaves Practice) v Sanders (2003) 1 ABC(NS) 408; [2003] FCA 1079
Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107; [2004] FCAFC 321
St George Bank Ltd v Klintworth and Another (1998) 86 FCR 240; 157 ALR 286
Stec v Orfanos [1999] FCA 457
Wren v Mahony (1972) 126 CLR 212; [1972] HCA 5
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

  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…

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Van der Munnik v Stewart [2010] FMCA 116
Case
[2010] FMCA 116
Decision Date

CaseChat Overview and Summary

In the matter of Van der Munnik v Stewart, the applicant, Van der Munnik, sought a sequestration order against the respondent, Michael Stewart, on the basis that Stewart had committed an act of bankruptcy by failing to pay a judgment debt. The case was heard and determined by Barnes FM of the Federal Magistrates Court.

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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