Wijayaratne v Temperzone Australia Pty Ltd

[2014] FCCA 331

FEDERAL CIRCUIT COURT OF AUSTRALIA

WIJAYARATNE v TEMPERZONE AUSTRALIA PTY LTD [2014] FCCA 331

Catchwords:
BANKRUPTCY – Review of sequestration order made by a registrar – interlocutory dismissal of review application – non-compliance with court order.

Legislation:

Bankruptcy Act 1966, s.153B

Federal Court Rules

Applicant: RAJITHA HEMAL WIJAYARATNE

Respondent: TEMPERZONE AUSTRALIA PTY LTD (ACN 090 057 640)

File Number: SYG 2300 of 2013

Judgment of: Judge Driver

Hearing date: 25 February 2014

Delivered at: Sydney

Delivered on: 25 February 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Mr Muir

Oliveri Lawyers

Counsel for the Trustee: Mr Rose

Solicitors for the Trustee: Bradley Allen Love Lawyers

INTERLOCUTORY ORDERS

1. The Court declares that order 3 made on 2 December 2013 applies on an from today and in particular the application for review filed on 14 November 2013 is dismissed with the respondent creditor’s costs up to and including 2 December 2013, to be taxed in accordance with the Federal Court Rules (Cth) in the absence of agreement.

2. The costs of the review applicant’s trustee in bankruptcy in respect of the review application up to and including 25 February 2014 are to be treated as costs incurred in the administration of the bankrupt estate of the review applicant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2300 of 2013

RAJITHA HEMAL WIJAYARATNE

Applicant

And

TEMPERZONE AUSTRALIA PTY LTD
(ACN 090 057 640)

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a sequestration order made by Registrar Hannigan on 5 November 2013.  The review application was filed 14 November 2013.  The review application asserts that the applicant bankrupt was not served with the bankruptcy notice supporting the petition.  The matter came before me on 2 December 2013.  The applicant bankrupt attended by telephone and Ms Conway appeared for the petitioning creditor.  Having heard the parties, I made three orders:

   1.The applicant on the review has leave to file and serve on the respondent on the review a Notice Stating Grounds of Opposition to the making of a sequestration order, together with any affidavit evidence he wishes to rely upon in support of that Notice, by 6 December 2013.

   2.If order 1 is complied with, the following orders shall apply:

   (a)the orders made by Registrar Hannigan on 5 November 2013 are set aside;

   (b)the creditor’s petition presented on 27 September 2013 be listed for hearing at 2.15pm on 25 February 2014;

   (c)costs of today are reserved.

   3.If order 1 is not complied with, the following orders shall apply:

   (a)the Application for Review filed on 14 November 2013 is dismissed with costs;

   (b)the petitioning creditor has leave and liberty to apply for an order quantifying the costs in order 3(a).

2. I was satisfied at the time that Mr Wajayaratne understood those orders. 

3. On 5 December 2013 Mr Wajayaratne filed an affidavit that states in the body of it, “Provide evidence to annul the sequestration order against him,” and annexes three documents.  The first is a letter dated 7 May 2013 to Mr R Wajayaratne and Mrs P Wajayaratne from KB Conveyancing in respect to the sale of a property at 5 Camden Court, Glen Waverley.  The second is a statement of adjustments as at 2 May 2013 by KB Conveyancing, and the third is a schedule evidencing a rental agreement between Lisa Tiantiarilol and Rajitha Wajayaratne and Prianka Wajayaratne in respect of premises at 20 Bermuda Drive, Blackman South, Victoria.  It was not clear on the face of those documents whether they constituted compliance, or substantial compliance, with order 1 I made on 2 December 2013.  With that in mind, I listed the matter for potential hearing of the creditor’s petition today. 

4. Further documents have been filed by the trustee on 25 February 2014.  Those go to the administration of the estate by the trustee to this point. 

5. When I came on the bench this afternoon, Mr Wajayaratne appeared on his own behalf and Mr Rose appeared on behalf of the trustee.  There was no appearance at that time on behalf of the petitioning creditor.  I adjourned temporarily so that Mr Rose could make inquiries as to the circumstances.  When I resumed, Mr Rose advised that he had been told that the petitioning creditor had not been served with the documents filed on 5 December 2013.  Subsequently, Mr Muir attended court on behalf of the petitioning creditor and confirmed that the creditor had not been served with the affidavit.  Mr Wajayaratne stated from the bar table that he had sent a copy of the affidavit to the office of the trustee in the expectation that the trustee would, acting in the interests of creditors, bring it to the attention of the petitioning creditor.

6. From that, I conclude that Mr Wajayaratne has not substantially complied with order 1 I made on 2 December 2013.  First, he has not filed a notice stating grounds of opposition to the making of the sequestration order.  Secondly, he has not served the affidavit he filed on 5 December 2013 on the petitioning creditor.  The consequence is that order 3 made on 2 December 2013 operates so that the application for review is dismissed with costs. 

7. The petitioning creditor seeks its costs of attendance on 2 December 2013.  I will order that Mr Wajayaratne pay those costs to be taxed if not agreed.

8. The trustee seeks his costs of the review generally as costs incurred in the administration of the bankrupt estate, and I will make that order. 

9. Mr Wajayaratne is aggrieved by this outcome. He maintains that the sequestration order is defective because, in his view, there was no service of the bankruptcy notice supporting the petition. The orders that I will make today do not prevent him from making further application for annulment of the bankruptcy, pursuant to s.153B of the Bankruptcy Act 1966 (Cth).

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  28 February 2014