Ward v Zozi

Case [2012] FMCA 898


FEDERAL MAGISTRATES COURT OF AUSTRALIA

WARD v ZOZI & ANOR [2012] FMCA 898
BANKRUPTCY – Application to set aside personal insolvency agreement and to make a sequestration order – whether petitioning creditor is a creditor under s.222(1) of the Bankruptcy Act 1966 (Cth) – whether debtor omitted material particular or included incorrect and material particular in his statement of affairs – whether terms of personal insolvency agreement to set be aside as unreasonable or not calculated to benefit creditors generally or for other reason – whether to make a sequestration order on the basis of a creditor’s petition.
Bankruptcy Act 1966 (Cth), ss.52, 120, 121, 122, 188, 189A, 189AAA, 190, 222
Family Law Act 1975 (Cth), s.90C

Augustyn v Putnin (1988) 83 ALR 514; [1988] FCA 372
Hingston v Westpac Banking Corporation (2012) 200 FCR 493; [2012] FCAFC 41
Khera v National Australia Bank Limited (1996) 71 FCR 133; [1996] FCA 1050
Moran v Robertson [2012] FCA 371
NZI Capital Corporation Limited v Lancaster (1991) 30 FCR 441; [1991] FCA 334
Osborne v Gangemi [2011] FCA 1252
Paradise Enterprises Limited v Kakavas [2011] FMCA 370
Re Agushi; Ex parte Farrow Mortgage Services Pty Ltd (In Liq) v Cole (1992) 8 ACSR 549; [1992] FCA 440
Re Alan Kevin Lockett Ex Parte: Northern Equity Limited and R and I Bank of Western Australia Limited [1992] FCA 142
Re Armando Tripodi Ex parte: Col Johnson Pty Limited [1987] FCA 8
Re Brennan;  Ex parte Stokes (Australasia) Ltd [1988] FCA 833
Re Cufari and Another; Ex Parte Commissioner of Taxation v Huppatz (1992) 34 FCR 544; [1992] FCA 95
Re John Codrington; Ex Parte: Don Mckay Tourist & Charter Pty Limited v John Codrington [1989] FCA 349
Re Mills; Ex parte Lloyd’s (1997) 73 FCR 551
Re Palazzolo Ex Parte: Discusso; Chalk; Chalk; Vaaca; Vaaca; Saggin and Saggin Trading As Southern Cross Produce and Newstart 259 Pty Limited Trading As Global Fruit Supply v Palazzolo and Sistrom  [1991] FCA 317
Re Peter Leigh Richards Ex parte: Beneficial Finance Corporation Limited [1986] FCA 74
Re Roger Lonsdale Lancaster v Nzi Capital Corporation Limited and the Official Trustee In Bankruptcy [1991] FCA 471
Re Stuart Stanley McDougall; Ex Parte: Policy Nominees Pty Ltd & Martin Alan Thomas [1997] FCA 197
Re Williamson and Another; Ex parte Wearne and Others (1980) 43 FLR 305; [1980] FCA 90

Westpac Banking Corporation v Hingston and Another (No. 2) (2010) 117 ALD 552; [2010] FCA 1116

Zozi v Ward [2011] FMCA 168

Applicant: WARWICK ROBERT WARD
First Respondent: MIOMIR ZOZI
Second Respondent: PAUL ANDREW LEROY
File Number: SYG 2391 of 2011
Applicant: WARWICK ROBERT WARD
First Respondent: MIOMIR ZOZI
Second Respondent: PAUL ANDREW LEROY
File Number: SYG 645 of 2011
Judgment of: Barnes FM
Hearing dates: 21 and 26 March 2012
Last date of submissions: 19 April 2012
Delivered at: Sydney
Delivered on: 28 September 2012

REPRESENTATION

Counsel for the Applicant: Mr J Johnson
Solicitors for the Applicant: Sally Nash & Co

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Details
AGLC
WARD v ZOZI & ANOR [2012] FMCA 898
Case
[2012] FMCA 898
Decision Date

CaseChat Overview and Summary

Ward, a creditor, sought to set aside a Personal Insolvency Agreement (PIA) entered into by Zozi, the debtor, and to proceed with sequestration of Zozi’s estate. The dispute involved the validity of the PIA and the correct date for the act of bankruptcy, which was central to the creditor's petition for sequestration. The Federal Court was tasked with deciding these matters.

The court had to determine whether the PIA was valid and should be set aside and, if so, the appropriate date for the act of bankruptcy that should be used in the creditor’s petition. The creditor argued that the PIA was invalid due to Zozi's failure to disclose all of his liabilities. The court needed to examine Zozi’s conduct and the terms of the PIA to decide if the agreement should be upheld or annulled. Additionally, the court had to establish the correct date for the act of bankruptcy, as this was crucial for the creditor’s petition.

The court found that Zozi had indeed failed to disclose all of his liabilities in the PIA, which rendered the agreement invalid. The act of bankruptcy was determined to have occurred on 11 March 2011, a date earlier than previously asserted in the creditor’s petition. The court set aside the PIA and granted leave to amend the creditor’s petition to reflect the correct date of the act of bankruptcy. The court subsequently issued a sequestration order against Zozi’s estate. The court ordered that the creditor’s costs be paid from Zozi’s estate and directed that a copy of the orders be sent to the Official Receiver in Sydney within two working days.

The court’s decision resulted in the annulment of the PIA, the amendment of the creditor's petition to reflect the accurate date of the act of bankruptcy, and the sequestration of Zozi’s estate. The creditor’s costs were to be paid from Zozi’s estate, and a copy of the orders was to be promptly provided to the Official Receiver.

Orders

Orders of the court

IN MATTER SYG 2391 OF 2011:

1.

The Personal Insolvency Agreement executed by the first respondent on 12 August 2011 be set aside.

IN MATTER SYG 645 OF 2011:

1.

Leave be granted to amend the creditor’s petition by altering the date of the act of bankruptcy in paragraph 4 to 11 March 2011.

2.

The requirement to serve the amended petition be dispensed with.

3.

A sequestration order be made against the estate of Miomir Zozi.

4.

A copy of these orders be given to the Official Receiver in Sydney by the applicant within 2 working days.

IT IS FURTHER ORDERED IN BOTH MATTERS THAT:

1.

The applicant creditor’s costs (including any reserved costs) be taxed in accordance with the Federal Court Rules and paid from the estate of the first respondent in accordance with the Bankruptcy Act 1966 (Cth).

THE COURT NOTES THAT:

1.

The date of the act of bankruptcy is 11 March 2011.

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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