Rasevi Pty Limited v Udowenko, in the matter of Udowenko [2003] FCA 95

FEDERAL COURT OF AUSTRALIA

Rasevi Pty Limited v Udowenko, in the matter of Udowenko [2003] FCA 95 IN THE MATTER OF WOLODYMYR UDOWENKO, MICHAEL UDOWENKO AND HELEN UDOWENKO

RASEVI PTY LIMITED (ACN 002 579 286) v WOLODYMYR UDOWENKO, MICHAEL UDOWENKO AND HELEN UDOWENKO

N 7060 OF 2002 LINDGREN J 7 FEBRUARY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7060 OF 2002

IN THE MATTER OF WOLODYMYR UDOWENKO, MICHAEL UDOWENKO AND HELEN UDOWENKO

BETWEEN: RASEVI PTY LIMITED (ACN 002 579 286)

APPLICANT

AND: WOLODYMYR UDOWENKO, MICHAEL UDOWENKO AND HELEN UDOWENKO

RESPONDENTS

JUDGE: LINDGREN J

DATE OF ORDER: 7 FEBRUARY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The motion brought by notice of motion filed on 10 December 2002 be dismissed. 2. Michael Udowenko and Helen Udowenko pay the costs of Rasevi Pty Limited of that motion. 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 7060 OF 2002

BETWEEN: RASEVI PTY LIMITED (ACN 002 579 286)

APPLICANT

AND: WOLODYMYR UDOWENKO, MICHAEL UDOWENKO AND HELEN UDOWENKO

RESPONDENTS

JUDGE: LINDGREN J

DATE: 7 FEBRUARY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 On 23 July 2002 Registrar Hedge ordered that sequestration orders be made against the estates of Michael Udowenko and Helen Udowenko, who are, respectively, the second-named and third-named respondents. I will refer to them as Mr and Mrs Udowenko. They have two sons to whom I will also refer. One of them is Wolodymyr Udowenko ("Wolodymyr") who, as can be seen from the headings of the proceeding, is the first-named respondent. The other son is Valentyn Udowenko ("Valentyn"), who is not a party to this proceeding. 2 By a notice of motion filed on 15 August 2002, application was made for an order that Registrar Hedge's orders made on 23 July 2002 "be struck out". The notice of motion did not make it clear who the moving parties were, but they must have been Mr and Mrs Udowenko since the sequestration orders were made by Registrar Hedge against them alone. In fact, while the second order made on 23 July 2002 was that the costs of the applicant creditor ("Rasevi") be paid from the estates of the "respondent debtors" in accordance with the Bankruptcy Act 1966 (Cth), the third "order" was "No order in respect of Wolodymyr Udowenko as petition not served". This also made it clear that the first and second orders were made against Mr and Mrs Udowenko alone and that they were the appropriate persons to apply to have the orders set aside. 3 The act of bankruptcy was non-compliance on 24 December 2001 with a bankruptcy notice served by Rasevi. 4 Mr and Mrs Udowenko's motion came before Moore J on 12 November 2002, but, there being no appearance on their behalf, his Honour dismissed the motion pursuant to O 10 r 3 of the Federal Court Rules, and ordered the respondents to pay the applicant's costs. I think the reference to "the respondents" in the costs order must also be understood as a reference to Mr and Mrs Udowenko, and not to Wolodymyr, for the reason mentioned, that is, that Mr and Mrs Udowenko alone should be treated as having been the subject of Registrar Hedge's first and second orders and the moving parties on the motion which was before Moore J. 5 By a notice of motion filed on 10 December 2002, application was made for an order "that the reasons for judgment and orders made by Moore J on 12 November 2002 be set aside". Another order was also sought, namely, that "the proceedings be adjourned until the outcome of the appeal to Legal Aid be determined and Legal Representation be provided to the Applicant". The appeal to the Legal Aid Commission was determined adversely to Mr and Mrs Udowenko. On Wednesday 5 February 2003 I heard the motion for an order setting aside the orders of Moore J.