Warren McKeon Dickson Pty Ltd v Maytom - [2012] FMCA 160

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Warren McKeon Dickson Pty Ltd v Maytom and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] FMCA 160
Decision Date: 6 March 2012

CaseChat Overview and Summary

Warren McKeon Dickson Pty Ltd filed a petition for sequestration against Gary Allan Maytom, seeking a declaration that Maytom was unable to pay his debts. The dispute was heard in the Federal Circuit Court of Australia. The primary legal issue before the Court was whether Maytom had committed an act of bankruptcy, as defined under the Bankruptcy Act 1966 (Cth), thereby rendering him sequestrable. The Court had to determine if Maytom’s failure to comply with a court order to pay a specified sum to Warren McKeon Dickson Pty Ltd constituted an act of bankruptcy.

In examining the evidence, the Court found that Maytom had indeed failed to comply with a final judgment debt, which was a clear act of bankruptcy. This conclusion was drawn from the fact that Maytom had not made any payments towards the judgment debt despite being legally obligated to do so. The Court further considered the implications of this act, noting that it was an unequivocal indication of Maytom's inability to pay his debts as they fell due. Consequently, the Court found that Maytom's failure to comply with the court order rendered him sequestrable under the provisions of the Bankruptcy Act 1966 (Cth).

Based on the evidence and the legal principles applied, the Court made a sequestration order against Maytom's estate. The Court also directed that the costs of the petitioning creditor be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth). Furthermore, the Court noted the date of the act of bankruptcy and the consent of Maxwell William Prentice to act as trustee. Finally, the Court acknowledged the petitioning creditor’s undertaking to arrange for the orders to be entered and served on Maytom.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.