Parnell Corporate Services Pty Ltd v Lieurance [2011] FMCA 709 (31 August 2011)

Last Updated: 14 September 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PARNELL CORPORATE SERVICES PTY LTD v LIEURANCE

[2011] FMCA 709

BANKRUPTCY – Creditor’s petition – no appearance by debtor – sequestration order made.

Bankruptcy Act 1966 (Cth), s.52.

Applicant:

PARNELL CORPORATE SERVICES PTY LTD (ACN 138 251 617)

Respondent:

BRETT LIEURANCE

File Number:

SYG 1579 of 2011

Judgment of:

Barnes FM

Hearing date:

31 August 2011

Delivered at:

Sydney

Delivered on:

31 August 2011

REPRESENTATION

Solicitors for the Applicant:

Atanaskovic Hartnell

Respondent:

No appearance

ORDERS

(1) A sequestration order be made against the estate of Brett Lieurance.
(2) The applicant creditor’s costs (including any reserved costs) be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
(3) Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within two (2) days.

THE COURT NOTES THAT:

(1) The date of the act of bankruptcy is 11 July 2011.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1579 of 2011

PARNELL CORPORATE SERVICES PTY LTD (ACN 138 251 617)

Applicant

And

BRETT LIEURANCE

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for a sequestration order. The creditor’s petition was filed and presented on 26 July 2011 by the applicant Parnell Corporate Services Pty Ltd in relation to the respondent debtor, Brett Lieurance. This matter was listed before the Registrar at 9.45 am this morning. I am informed by the solicitor for the applicant creditor that there was no appearance by the respondent debtor before the Registrar. The report of listing is to the same effect. The matter was transferred to me to determine. There was no appearance by the respondent debtor at 10.30 am. Nor is there any appearance now at 10.37 am. In all the circumstances I consider that it is appropriate to proceed in the absence of the debtor, there being no evidence of any explanation for the failure by the debtor to appear today.
2. The creditor relies on what may be described as the usual affidavits in support of the proposition that the requirements of s.52(1) of the Bankruptcy Act 1966 (Cth) are met. I am satisfied on the basis of the evidence before me that the requirements of s.52(1) are met.
   The creditor’s petition, presented on 26 July 2011, relies on an act of bankruptcy consisting of a failure by the respondent debtor to comply on or before 11 July 2011 with the requirements of a bankruptcy notice issued on 29 April 2011 and served on him on 20 June 2011. I am satisfied on the basis of the affidavit of service for the bankruptcy notice that it was so served. I note that it was personally served. There is no suggestion that the debtor has a counter-claim, set-off or cross demand equal to or more than the sum claimed in the bankruptcy notice that could have been set up in the action in which the judgment referred to in the bankruptcy notice was obtained. I am satisfied that the debtor committed the act of bankruptcy alleged in the petition and that the date of the act of bankruptcy was 11 July 2011.
3. The judgment on which the creditor’s petition is based is a judgment of the Local Court of New South Wales of 29 March 2011 for the sum of $12,013.25. Allowance has been made in the creditor’s petition for two payments of $1,000 each made by the respondent debtor. The creditor has also filed an affidavit of final debt and I am satisfied on the basis of that material that the debt on which the petitioning creditor relies is still owing.
4. The affidavit of service of the creditor’s petition sworn on 22 August 2011 attests to personal service of the creditor’s petition on the respondent on 15 August 2011. I note in that respect, relevant to the fact that the respondent debtor has not appeared today, that the creditor’s petition correctly recorded the time and date for the hearing as 9.45 am on 31 August 2011 and advised of the place of the hearing.
5. In these circumstances the court has power to make a sequestration order against the estate of the debtor. I am satisfied that it is appropriate to make such a sequestration order, being satisfied with proof of the matters required by s.52(1) of the Bankruptcy Act and there being no issues raised under s.52(2) of the Act.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Barnes FM.

Date: 12 September 2011