Zekry v Nair
[2012] FMCA 237
•19 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZEKRY v NAIR | [2012] FMCA 237 |
| BANKRUPTCY – Application to set aside bankruptcy notice – controlling trustee appointed – applicant failed to appear. |
| Bankruptcy Act 1966 (Cth), s.188 |
| Applicant: | GEORGE ZEKRY |
| Respondent: | ANAND BALSEGRAN NAIR |
| File Number: | SYG 2689 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 19 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2012 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitor for the Respondent: | Sally Nash & Co |
| Solicitor for the Trustee: | Hugh & Associates |
ORDERS
The application be dismissed.
The applicant pay the costs of the respondent, including reserved costs, as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2689 of 2011
| GEORGE ZEKRY |
Applicant
And
| ANAND BALSEGRAN NAIR |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application filed on 24 November 2011 by George Zekry seeking that a bankruptcy notice be set aside. The matter came before me for hearing on 1 February 2012 but was adjourned until today in circumstances where the applicant had signed an authority under s.188 of the Bankruptcy Act 1966 (Cth). There was an appearance for the controlling trustee on that occasion. Orders were made for the filing of further evidence and the matter was listed for hearing today.
Today there was an appearance for the controlling trustee and also for the respondent creditor, Mr Nair. There was no appearance by or on behalf of Mr Zekry. The matter was called at the time at which it was listed and also some 15 minutes later. The solicitors for each of the respondent and the controlling trustee addressed the applicable law. The solicitor for the controlling trustee advised the Court that he had spoken to the solicitor for Mr Zekry who indicated that he had no instructions to appear today, but that he had told his client that he would need to appear today and had advised him that he had already committed an act of bankruptcy by signing the s.188 authority. This may make the present proceeding somewhat otiose.
The solicitor for the controlling trustee advised that his client does not seek to pursue this application. The solicitor for the respondent seeks that the application be dismissed.
The applicant is not present to argue to the contrary or to suggest that the matter could be pursued in circumstances where the controlling trustee does not wish to do. In circumstances where the absent applicant has signed an authority under s.188 of the Bankruptcy Act vesting his property in the controlling trustee, where the trustee does not seek to actively prosecute the application before the Court and having regard to the nature of the proceeding, it is appropriate that the application be dismissed.
I have .reached that view notwithstanding that the solicitor for the applicant, who has not filed a notice of ceasing to act for the applicant but has not appeared, has apparently indicated to the solicitor for the controlling trustee that the debtor would like to have the application stood over until a meeting of creditors is held which has been adjourned until 29 March 2012. I am not persuaded that it is appropriate for the Court to grant such an adjournment in the particular circumstances of this case, having regard to the apparent commission of an act of bankruptcy and the failure of the applicant or his solicitor to appear today.
I note I was told from the bar table that the debtor had applied to pay the debt by instalments. This was said to be inconsistent with the view that he was not indebted to the creditor. It is not necessary for me to enter into a consideration of such issues in circumstances where the controlling trustee does not seek to pursue the matter and the debtor is not present today to persuade the Court that the matter ought otherwise to proceed or be adjourned. The application should be dismissed. It is appropriate in accordance with the normal principles that the unsuccessful applicant should meet the costs of the respondent.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 27 March 2012
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