Saparas, In the matter of Touma v Touma [2000] FCA 308

FEDERAL COURT OF AUSTRALIA

Saparas, in the matter of Touma v Touma [2000] FCA 308 BANKRUPTCY - application for sequestration order – whether debtor solvent – whether act of bankruptcy committed - whether discretion under s 52(2) of the Bankruptcy Act 1966 should be exercised not to make sequestration order

Bankruptcy Act 1966 (Cth) ss 40, 43, 52(2), 306

Re Sarina; Ex parte Wollondilly Shire Council (1980) 32 ALR 596, followed Trojan v Corp of Hindmarsh (1987) 16 FCR 37, distinguished Stafford v Bank of New Zealand (Heerey J, 18 November 1992, unreported), distinguished Re Lakatos; Ex parte Lakatos v Deputy Commissioner of Taxation (1996) 33 ATR 145, considered Re Vikelis; Ex parte Deputy Commissioner of Taxation (Jenkinson J, 4 November 1985, unreported), considered IN THE MATTER OF DANIEL TOUMA CARMEN REGINA SAPARAS v DANIEL TOUMA N 7851 OF 1999 O'CONNOR J 17 MARCH 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N7851 OF 1999

IN THE MATTER OF DANIEL TOUMA

BETWEEN: CARMEN REGINA SAPARAS

AND: DANIEL TOUMA

JUDGE: O'CONNOR J

DATE OF ORDER: 17 MARCH 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The petition be dismissed 2. The applicant pay the respondent's costs in this proceeding Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7851 OF 1999

IN THE MATTER OF DANIEL TOUMA

BETWEEN: CARMEN REGINA SAPARAS

AND: DANIEL TOUMA

JUDGE: O'CONNOR J

DATE: 17 MARCH 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

BACKGROUND

1 This is an application for a sequestration order under s 43 of the Bankruptcy Act 1966 (Cth) ("the Act") against the estate of the respondent. The respondent debtor owes the applicant creditor the amount of $152,287.77 being made up of a District Court judgment entered on 29 March 1999 and accrued interest until 27 July 1999. 2 It is not contested that the applicant creditor does not have security over the property of the respondent debtor, that at the time when the act of bankruptcy was committed the respondent debtor was personally present in Australia, was ordinarily resident in Australia, had a dwelling house in Australia and a place of business in Australia. 3 The respondent debtor committed an act of bankruptcy in that he failed to comply with the requirements of the bankruptcy notice served on him on 20 June 1999, the execution of which had not been stayed (s 40(g)(1) of the Act). The respondent initially opposed the petition for the sequestration order on two grounds: (i) that he is solvent and able to pay his debts; and (ii) that he had an appeal pending in the New South Wales Court of Appeal against the creditor's judgment. 4 At the hearing in this matter the court was informed that the New South Wales Court of Appeal had dismissed the debtor's appeal. In these proceedings, therefore, he relied on provisions of s 52(2) of the Act, submitting that the court should dismiss this petition if it is satisfied that the debtor is able to pay the relevant debt.