Warren McKeon Dickson Pty Ltd v Maytom
[2012] FMCA 160
•6 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WARREN McKEON DICKSON PTY LTD v MAYTOM | [2012] FMCA 160 |
| BANKRUPTCY – Contested creditor’s petition – grounds of opposition – consideration of whether any reason existed for the Court to defer making or refrain from making a sequestration order. |
| Bankruptcy Act 1966 (Cth) Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) |
| Applicant: | WARREN MCKEON DICKSON PTY LTD |
| Respondent: | GARY ALLAN MAYTOM |
| File Number: | SYG 2762 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 6 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C Pryor Warren McKeon Dickson Lawyers |
No appearance by or on behalf of the Respondent
ORDERS
A sequestration order be made against the estate of Gary Allan Maytom.
The petitioning creditor’s costs, including reserved costs if any, be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).
The Court notes the date of the act of bankruptcy is 15 November 2011.
The Court notes that a Consent to Act as Trustee has been signed by Maxwell William Prentice on 19 January 2012.
The Court notes the undertaking of the petitioning creditor to arrange to have these orders entered and to serve a sealed copy of these orders on the respondent both his last known address for service and his post office box.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2762 of 2011
| WARREN MCKEON DICKSON PTY LTD |
Applicant
And
| GARY ALLAN MAYTOM |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a creditor’s petition filed on 5 December 2011 seeking a sequestration order and other orders against the estate of Gary Allan Maytom. The petition is supported by the verifying affidavit contained in part 2 of it. The petition is further supported by the affidavits of Craig Pryor, solicitor, made on 5 December 2011, 30 January 2012, and 5 March 2012.
There is also a supporting creditor, Jackson Lalic Lawyers, who claim a debt of approximately $8,000 based upon a judgment in respect of unpaid legal fees. The supporting creditor was represented in court this morning. The affidavit of David Edward Lalic made on 10 February 2012 was tendered by the petitioning creditor.
The matter came before me yesterday from the registrar’s list. At that time, the petitioning creditor and the respondent debtor both appeared. Mr Maytom, who appeared in person, informed me that he wished to seek an adjournment. I advised that I would be unable to deal with the matter at that time, but listed the matter for hearing today, first, in relation to any directions required if an adjournment were to be granted, and secondly, for the hearing of the petition in the event that no adjournment was granted.
I advised the parties that while I would hear argument on the question of an adjournment, they would need to be ready to deal with the petition in the event that there was no adjournment. I satisfied myself that Mr Maytom understood the position. This morning there has been no appearance by or on behalf of Mr Maytom. The matter has been called three times, and on each occasion there was no response to the call. There is no explanation for his non attendance[1].
[1] After delivering oral judgment my associate drew to my attention an email from the court registry which advised that Mr Maytom had telephoned the registry to inform the Court that he was running late. My associate and I had no access to email prior to court due to a system failure in the Family Court computer network. Mr Maytom later attended the registry rather than come to court and attempted to file an interlocutory application. My associate informed the registry by telephone that a sequestration order had been made and that, in the circumstances, rather than accept the interlocutory application, the registry should inform Mr Maytom of his rights pursuant to rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).
In the circumstances, I have decided to deal with the matter in his absence. The petition was filed, as I have already noted, on 5 December 2011. While the matter was before a registrar, there were a number of adjournments, apparently for the purpose of giving Mr Maytom the opportunity to take action in relation to the judgment debt for unpaid legal costs, which he disputes. I am not persuaded, on the material before me, that there is any reason for a further adjournment, and I have decided to deal with the petition.
The petition is opposed by Mr Maytom, who filed a Notice of Grounds of Opposition on 29 February 2012. That Notice of Grounds of Opposition contains three grounds:
1.Warren McKeon Dickson. Default judgement was issued with various errors of law and without the defense being notified in order to defend the application.
2. Jackson Lalic. Various errors of law including retrying the same matter which has been dismissed in this Court.
3. Both of these matters are under review and appeal.
Ground 1 is an unsupported invitation for the court to go behind the judgment debt. Ground 2 indicates a dispute Mr Maytom wishes to agitate in respect of the supporting creditor’s debt. Ground 3 asserts incorrectly that both of these matters are under review and appeal.
The Notice of Grounds of Opposition is supported by two affidavits by Mr Maytom made on 20 and 29 February 2012. Those affidavits contain assertions in the nature of submissions. The affidavits contain allegations against both the solicitors who are the petitioning creditors and the solicitors who are the supporting creditor. The affidavit of Abbie Hayes McPhillips, legal secretary, made on 2 March 2012, which I received in relation to the grounds of opposition, establishes that Mr Maytom has not taken any action in order to seek to disturb the judgment of the Local Court, which supports the petition.
I am satisfied that the petitioning creditor has establishing a prima facie case for the relief sought in the petition, and that there has been sufficient compliance with the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) and Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) in relation to the formal requirements for obtaining a sequestration order. I am not satisfied that Mr Maytom has raised in his Notice of Grounds of Opposition any reason for the Court to refrain from making a sequestration order now. I am satisfied that Mr Maytom committed the act of bankruptcy alleged in the petition, and I am satisfied with the proof of the other matters of which s.52(1) of the Bankruptcy Act requires proof.
I will order that a sequestration order be made against the estate of Gary Allan Maytom. I will further order that the petitioning creditor’s costs, including reserved costs if any, be taxed and paid in accordance with the Bankruptcy Act.
I note that the date of the act of bankruptcy is 15 November 2011. I further note that a Consent to Act as Trustee was signed by Maxwell William Prentice on 19 January 2012.
I note the undertaking of the petitioning creditor to arrange to have the orders made today entered and to serve a sealed copy of the orders on Mr Maytom at his last known address for service, as well as his post office box.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 9 March 2012
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