Weir v Storry
[2022] FedCFamC2G 183
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Weir v Storry [2022] FedCFamC2G 183
File number(s): BRG 555 of 2021 Judgment of: JUDGE EGAN Date of judgment: 18 March 2022 Catchwords: BANKRUPTCY – application for sequestration order – judgement debt unpaid – no basis for stay of proceeding pending hearing and determination of appeal which has no prospect of success – sequestration order made Legislation: Bankruptcy Act 1966 (Cth) ss. 41(6A) and (6C), 156A. Division: Division 2 General Federal Law Number of paragraphs: 13 Date of last submission/s: 17 March 2022 Date of hearing: 17 March 2022 Solicitor for the Applicant: SLF Lawyers Counsel for the Respondent: The Respondent appeared in person ORDERS
BRG 555 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JONATHAN DAVID WEIR
Applicant
AND: VENETIA LOUISE STORRY
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
18 MARCH 2022
IT IS ORDERED THAT
1.A sequestration order is made against the estate of Venetia Louise Storry.
2.The Petitioning Creditor’s costs be paid out of the bankrupt’s estate in accordance with the priority to which he is entitled as agreed or taxed in accordance with the Bankruptcy Act 1966 (Cth).
AND IT IS NOTED THAT
(1)A consent to act as trustee signed by David Lewis Clout has been filed under s. 156A of the Bankruptcy Act 1966 (Cth).
(2)The act of bankruptcy occurred on 1 November 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction
The application before the Court was for the making of a sequestration order against the estate of the respondent.
The applicant was the judgement creditor in Magistrates Court proceedings instituted on his behalf, against the respondent, on 24 May 2017.
As at the date of the court hearing, the respondent had not filed any document in response to the application. At the hearing, the Court admitted into evidence as Exhibit 1 an amended document dated 14 March 2022, which the applicant advised the Court had not been accepted for filing due to its lack of form. On its face, that document is of no obvious significance.
The relevant litigation history involving the applicant and the respondent was as follows:
(a)On 4 December 2020, in an order made by one Acting Magistrate Smith, judgement was entered against the respondent for the total amount of $39,506.86.
(b)On 15 January 2021 the respondent filed an appeal from the judgement to the Queensland Court of Appeal;
(c)On 16 February 2021, Justice Sofronoff of the Court of Appeal dismissed the respondent’s appeal;
(d)On 15 October the respondent filed a stay application of the decision of Justice Sofronoff;
(e)On 26 October 2021 the Court of Appeal dismissed the stay application as referred to at subparagraph (d) herein;
(f)On 20 October 2021 the respondent filed a stay application with the Magistrates Court of Queensland regarding the judgement (Magistrates Court Stay Application)
(g)The respondent’s affidavit filed in support of the stay application exhibited a copy of the Bankruptcy Notice served by post;
(h)On 7 December 2021 the Magistrates Court (acting Magistrate Turra) dismissed the respondent’s Magistrates Court stay application.
(i)On 25 October 2021 the respondent filed an application for special leave to appeal to the High Court of Australia (High Court Application) which, inter alia, purported to seek an order setting aside President Sofronoff’s order of 16 February 2021.
(j)On 11 March 2022, the respondent filed an appeal from the decision of Acting Magistrate Turra on grounds which included, inter alia:
(i)The High Court Application
(ii)The current bankruptcy proceedings.
(k)On 16 March 2022, the High Court Application for special leave to appeal was dismissed.
The respondent conceded at the time of the hearing before the Court that she had not paid the judgement sum to the applicant. The respondent made submissions to the Court to the effect that the Court should stay the further hearing of the sequestration application pending the hearing and determination of a notice of appeal and stay application yet to be filed by her in the District Court of Queensland. The respondent had admitted into evidence as Exhibit 2 a bundle of documents which she submitted showed a good basis for the making of a stay order.
The Court has had regard to the content of Exhibit 2. Having done so, the Court has not identified any document or transcript which could constitute the basis for any reasonable argument that a stay order ought to be made in the present proceeding. The respondent has exhausted her avenues of appeal against the Magistrates Court judgement entered against her. Any further appeal proceedings filed by or on behalf of the respondent have no prospects of success.
The Court has considered the affidavit material filed on behalf of the applicant in support of the making of a sequestration order. That affidavit material documents the following:
(a)On 23 September 2021 the Official Receiver issued Bankruptcy Notice No. 254316;
(b)On 29 September 2021 the respondent was served with, inter alia, the Bankruptcy Notice referred at subparagraph (a) herein in accordance with Regulation 102 of the Bankruptcy Regulations 2021.
(c)The Respondent failed to comply on or before 1 November 2021 with the requirements of the Bankruptcy Notice deemed to have been served by no later than 8 October 2021.The respondent otherwise failed to satisfy the Court that she had a counter-claim, set-off or cross demand equal to, or more than, the sum claimed in the respective Bankruptcy Notice, being a counter- claim, set-off or cross demand she could have set up in the action in which the judgment referred in the Bankruptcy Notice was obtained [being the Judgment as annexed to the Bankruptcy Notice being the Magistrates Court of Queensland judgment obtained in the Applicant’s favour in the sum of $39,506.864].
(d)A Creditor’s Petition was filed in this Honourable Court on 14 December 2021.
(e)On 29 January 2022 the Creditor’s Petition was personally served on the Respondent;
(f)The debt on which the petitioning creditor relies is still owing.
The Bankruptcy Notice was deemed to have been served upon the respondent no later than 8 October 2021. The respondent had not sought any extension of time to comply with the Bankruptcy Notice pursuant to the provisions of ss. 41(6A) or 41(6C) of the Bankruptcy Act 1966 (Cth) (the Act).
The applicant has failed to provide evidence:
(a)As to her solvency as at the date of the hearing before the Court; or
(b)That the sequestration order ought not to be made for any other reason.
The relevant act of bankruptcy occurred on 1 November 2021, that being the date prior to which the respondent had failed to pay the judgement sum to the applicant after service upon her of the Bankruptcy Notice.
The Court is satisfied that the judgement sum remains unpaid, and that the respondent is unable to pay her debts as and when they fall due.
The Court is further satisfied that the respondent was duly served with all relevant documents, and that the applicant has otherwise established that all procedural matters required to be attended to by him have been duly carried out.
Accordingly, a sequestration order is made against the estate of Venetia Louise Storry.
The costs of and incidental to the proceeding should follow the event.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 18 March 2022
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