Gardner Corp Pty Ltd v Sweetman [1999] FCA 1666

FEDERAL COURT OF AUSTRALIA

Gardner Corporation Pty Ltd v Sweetman [1999] FCA 1666

BANKRUPTCY - application for a sequestration order - respondent has filed writ against applicant - whether respondent has shown sufficient cause for a sequestration order not to be made. Bankruptcy Act 1966, ss 40, 43, 52(2)(b) Trade Practices Act 1974, ss 51A, 52 Wren v Mahony (1972) 126 CLR 212 Love v Pattison (unreported, Federal Court of Australia, Full Court, 24 July 1998)

GARDNER CORPORATION PTY LTD v SWEETMAN

W 7067 of 1999

BOON JR

30 NOVEMBER 1999

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W7067 OF 1999

BETWEEN: GARDNER CORPORATION PTY LTD

Applicant

AND: STEVEN RONALD SWEETMAN

Respondent

COURT: BOON JR

DATE OF ORDER: 30 NOVEMBER 1999

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. A sequestration order be made against the estate of the respondent 2. The respondent pay the applicant's costs of this matter. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W7067 OF 1999

BETWEEN: GARDNER CORPORATION PTY LTD

Applicant

AND: STEVEN RONALD SWEETMAN

Respondent

COURT: BOON JR

DATE: 30 NOVEMBER 1999

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant, Gardner Corporation Pty Ltd, has applied to the Court for a sequestration order under s 43 of the Bankruptcy Act 1966 against the estate of the respondent, Steven Ronald Sweetman. 2 The application (as amended pursuant to an order of District Registrar Jan on 12 October 1999) states that the respondent owes the applicant the sum of $63,209.24 inclusive of $2770.47 interest, being the amount due under a judgment of the District Court of Western Australia held at Perth on 23 March 1998. The applicant does not hold security over the property of the respondent. It is alleged that the respondent committed an act of bankruptcy within 6 months before the presentation of the petition, in that the respondent failed to comply either on or before 29 March 1999 with the requirements of a bankruptcy notice served on him on 5 February 1999. It is also alleged that the respondent has failed to show that he had a counterclaim, set-off or cross demand equal to or exceeding the sums specified in the bankruptcy notice, being a counterclaim, set-off or cross demand that he could not have set up in the action in which the judgment referred to in the bankruptcy notice was obtained. The application also states that at the time when the act of bankruptcy was committed the respondent was personally present in Australia, was ordinarily resident in Australia and had a dwelling house or place of business in Australia. 3 The application in this matter was filed on 28 May 1999. 4 Affidavits filed in support of the application show that the respondent was served with the bankruptcy notice on 5 February 1999. On 12 February 1999 the respondent filed applications to set aside the bankruptcy notice and for an extension of time to comply with the bankruptcy notice. That matter went before Deputy District Registrar Stanley on 29 March 1999, who made orders that the applications be dismissed. 5 On 2 July 1999 Deputy District Registrar Rayney made orders including that personal service of the petition on the respondent be dispensed with. The application was served on the respondent's solicitors. The respondent has sworn and filed affidavits in this matter. 6 On 23 August 1999 the respondent filed a notice of intention to oppose the petition on grounds including that pursuant to s 52(2)(b) of the Bankruptcy Act 1966 there is sufficient cause for a sequestration order not to be made against the respondent, namely the respondent's claims against the applicant. The notice of intention to oppose the petition sets out further grounds for opposing the petition. Those other grounds related to certain formalities of the documents served on the respondent and have already been dealt with before District Registrar Jan at an earlier date.