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NSW Sequestration Order - Must Debtor attend court?

Discussion in 'Debt and Bankruptcy Law Forum' started by MadFunMum, 18 October 2017.

  1. MadFunMum

    MadFunMum Active Member

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    Hopefully an easy question for someone.....

    If a Debtor will not be opposing a Credtor's petition for Sequestration Orders, is it necessary for the Debtor to attend court? If so, why?
     
  2. Tim W

    Tim W Lawyer
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  3. MadFunMum

    MadFunMum Active Member

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    Haha. It's real, actually. I've been (trying to) help my neighbour defend herself in this bankruptcy matter, but we have decided to stop flogging a dying horse.

    She is already doing it tough, and I don't want her to miss another day of work/income to attend the Federal Circuit Court for the sequestration order unless she absolutelly has to.

    With thanks in advance...

    ;)
     
  4. Tim W

    Tim W Lawyer
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  5. MadFunMum

    MadFunMum Active Member

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    She doesn’t have a trustee yet.
    We have tried to have the Local Court default judgement that assigned lability for the debt to her set aside but we have withdrawn that motion.
    So tomorrow the FCC will hear the Creditor’s Petition for a Sequestration Order against her estate - then she will be declared bankrupt and Trustee will be assigned.
    So my question is does she need to bother going if she’s not opposing the sequestration order?
     
  6. Tim W

    Tim W Lawyer
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    If you think attending court is a "bother", then you are already giving her questionable advice.

    Further, I am not quite clear on how, if she is not opposing the order,
    there can be any "defending".
    Especially given that in a bankruptcy proceeding,
    she is much more likely to be a respondent than a defendant.

    I infer from your earlier posts that you may have done some DIY Family Law.
    Good for you.
    I suggest however that any self-belief you may have accrued from that experience
    does not extrapolate into giving quasi-legal advice to persons facing bankruptcy.
    While I recognise your good intentions, I suggest that you really are rather overstepping,
    and I urge you to the greatest caution and the strongest self-restraint..
     
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  7. MadFunMum

    MadFunMum Active Member

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    I really was asking a very simple question, to which I still don't seem to have a straight answer...

    Just to clarify and set the record straight, here's a more detailed outline of the matter:
    • My neighbour was the Second Defendant in a Statement of Claim filed in the Local Court and served in 2015.
    • After being served she called the First Defendant (by whom the debt was incurred) who told her to ignore it as he had already paid the debt.
    • The Statement of Claim was never served on the First Defendant.
    • As she did not file a defence or attend the hearing, and unbeknownst to her, a Default Judgement was entered against my neighbour in June 2016.
    • She was served a Bankruptcy Notice in late 2016 and a Creditor's Petition for a sequestration order in May 2017.
    • I helped her seek adjournments in the Federal Circuit and Local Courts and to prepare and file a Notice of Motion to Set Aside the Default Judgement in the Local Court, taking legal advice and counsel as necessary.
    • The Notice of Motion was discontinued early this week, and the Creditor's Petition will be heard in the Federal Circuit Court tomorrow.
    • I understand that it's better to appear in Court than not, but given she is not opposing the Sequestration Order and she has no assets and limited income, it's hard to see how her prescence (or absence) would have any impact on the outcome of the proceedings.
    • In the past 3 months my neighbour has missed 8 days of work due to this matter. She is a part-time/casual worker. She does not accrue sick leave or holiday leave, and if she doesn't work she doesn't get paid. Oh, and her boss might sack her and hire someone else who can be more reliable/consistent.
    Oh, and by the way, I have a Law Degree (First Class Honours) and an Economics Degree from the University of Sydney, as well as an MBA. I am not a solicitor. I prefer to instruct solicitors, and I have spent the last 15 years doing so - predominantly Senior Partners at top tier firms in commercial, investment and contractual matters (thankfully no bankruptcy matters or court appearances).

    I might not be a practicing lawyer, but I understand the law a lot better than the average schmuck, and if I think I can help a friend or family member with a legal issue then I will - especially if they can't afford a lawyer and can't access Legal Aid. It goes without saying that I religiously avoid extrapolating anything into quasi-legal advice. And I am vigilant about exercising self-restraint and not overstepping.

    So please don't worry your pretty little head about me.
     
  8. Tim W

    Tim W Lawyer
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    ...and yet, with access to all those solicitors, you come here, of all places,
    for the most basic of advice on a point of civil procedure?
    <Tim scratches head>
    You do like to live dangerously.
    You may be quite sure of that.
     
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