Yamaha Motor Finance Australia Pty Ltd v Waller
[2012] FMCA 665
•16 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YAMAHA MOTOR FINANCE AUSTRALIA PTY LTD v WALLER | [2012] FMCA 665 |
| BANKRUPTCY – Creditor’s petition – grounds of opposition – whether the Farm Debt Mediation Act 1994 (NSW) applied to the debt considered – whether the debt had been paid considered. |
| Bankruptcy Act 1966, s.52 Farm Debt MediationAct1994 (NSW), s.4 |
| Applicant: | YAMAHA MOTOR FINANCE AUSTRALIA PTY LTD |
| Respondent: | ROSLYN EDWINA WALLER |
| File Number: | SYG 2605 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 16 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 16 July 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Xenos Bayside Solicitors |
The Respondent appeared in person
ORDERS
A sequestration order be made against the estate of Roslyn Edwina Waller.
The applicant creditor’s costs, including reserved costs if any, be fixed in the amount of $1,000 and paid in accordance with the Bankruptcy Act 1966 (Cth).
The Court notes that the date of the act of bankruptcy is 23 September 2011.
Pursuant to s.52(3) of the Bankruptcy Act 1966 (Cth), all proceedings under the sequestration order are stayed for a period of 21 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2605 of 2011
| YAMAHA MOTOR FINANCE AUSTRALIA PTY LTD |
Applicant
And
| ROSLYN EDWINA WALLER |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a creditor’s petition filed on 16 November 2011 seeking a sequestration order against the estate of Roslyn Edwina Waller and consequential orders. The petition is supported by the affidavit of James Dracopoulos filed on 16 November 2011 verifying paragraph 4 of the creditor’s petition, which is otherwise verified by the affidavits contained within it. The petition is further supported by the affidavit of David John Budd made on 6 December 2011 and filed in Court by leave today, dealing with service of the petition and related documents.
The affidavit of David John Budd, made on 7 September 2011 and filed on 16 November 2011 proves service of the bankruptcy notice supporting a petition. I also have before me affidavits of final search and debt made by James Dracopoulos on 16 July 2012 and Sabrina San Jose made on the same date and filed in Court by leave today. The petitioning creditor (“Yamaha”) also relies upon the affidavit of Timothy Xenos filed on 10 July 2012 and the affidavit of Gregory Mark Tattersall made on 31 January 2012.
The petition is opposed by Mrs Waller who relies upon two notices of grounds of opposition filed on 1 June and 27 June 2012. The notices of grounds of opposition are supported by two affidavits by Mrs Waller made on 24 May 2012 and 26 June 2012.
None of the deponents were required for cross-examination. I accept from the evidence advanced in support of the petition that prima facie, the petitioning creditor has established an entitlement to the relief it seeks. The real question is whether Mrs Waller has advanced a reason for the Court to refrain from making a sequestration order.
Mrs Waller is a farmer. In the course of operating her farm, she had need of a four-wheeled agricultural motor bike (an agricultural quad bike). She arranged to purchase an agricultural quad bike with funds advanced by the petitioning creditor. She made payments but defaulted on the loan by missing at least one payment. That default resulted in recovery proceedings, culminating in a default judgment in the Local Court. Mrs Waller, on becoming aware of that default judgment, sought to have it set aside. There were discussions between the parties which resulted in the application to set aside the default judgment being itself dismissed.
This was in the expectation that the amount claimed by Yahama would be paid. The required payments were not made and Yamaha thereupon caused the bankruptcy notice to be issued, and when it was not satisfied, commenced the present bankruptcy proceedings. There have been further discussions at several points during the course of the present proceedings. Various agreements have been reached which have resulted in the bankruptcy proceedings being adjourned, and several significant payments have been made.
Approximately half the amount sought by Yahama in respect of its original judgment debt plus interest and costs has been paid. Mrs Waller is aggrieved that money that has been paid by her or on her behalf has been applied to interest and costs rather than in reduction of the principal debt. However, I am satisfied from the evidence of Mr Xenos that it was understood, either by Mrs Waller or the solicitor acting on her behalf, that Yahama would apply funds paid initially for legal costs and interest and then in reduction of the principal sum.
As at today, I accept from the affidavit of final debt that an amount of $11,981.72 remains owing, which is derived from a debt of $15,030.73, including accrued interest, less an amount of $3049.01, received on 16 April 2012, being part of a payment of $5,000 which, by agreement, was applied in part in reduction of the principal sum. The grounds of opposition insofar as they rely upon an assertion that moneys paid pursuant to an agreement or discussions between the parties has been misapplied fails.
The other basis of Mrs Waller’s opposition depends upon her attempted reliance upon the Farm Debt MediationAct1994 (NSW) (“the Farm Debt Mediation Act”). That Act applies relief to farmers in respect of certain farm debts. Mrs Waller claims the protection of that Act on the basis that the agricultural quad bike she purchased is farm machinery within the meaning of that act. I reject that contention. “Farm machinery” is defined in s.4 of the Act as, relevantly:
(a) a harvester, binder, tractor, plough or other agricultural implement, or
(b) any other goods of a class commonly used for the purposes of a farming operation that are prescribed by the regulations as being farm machinery for the purposes of this Act,
if the goods are acquired for the purposes of a farming operation.
I have no difficulty in accepting that an agricultural quad bike falls into a class of vehicles commonly used for the purposes of farming operations. The difficulty for Mrs Waller is that no regulations have been made under the Act in order to deal with that class of goods. I do not accept that an agricultural quad bike is an agricultural implement for the purposes of the definition of farm machinery because the words “agricultural implement” are limited in their meaning by the words preceding them. Mrs Waller is therefore not entitled to the protection of the Farm Debt Mediation Act.
I conclude that Mrs Waller has failed to establish a reason for the Court to refrain from making a sequestration order. It follows that a sequestration order should be made.
I recognise, however, that Mrs Waller may be solvent, although she has not advanced solvency as a ground of opposition to the petition. She has been reluctant to pay the amounts demanded of her by Yahama because of her concern about the growth of interest payments and legal costs. That is the consequence of the delay in the resolution of the dispute between the parties and is largely, unfortunately, a delay of Mrs Waller’s own making.
It may remain within her power to pay the balance required of her, and with that in mind, I will grant a period of 21 days stay on proceedings under the sequestration order that I will make. That will provide Mrs Waller with a final opportunity to produce the remaining amount due from her.
I make the following findings and orders. I am satisfied that Mrs Waller committed the act of bankruptcy alleged in the petition, and I am satisfied that the proof of the other matters of which s.52(1) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) requires proof. I am not satisfied that Mrs Waller has advanced a reason for the Court to refrain from making a sequestration order. I will order that a sequestration order be made against the estate of Roslyn Edwina Waller.
The applicant creditor’s costs, including reserved costs if any, shall be fixed in the amount of $1,000.
The Court notes that the date of the act of bankruptcy is 23 September 2011.
Pursuant to s.52(3) of the Bankruptcy Act 1966 (Cth), all proceedings under the sequestration order are stayed for a period of 21 days.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 2 August 2012
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