Provident Capital Ltd v Hans Peter Mollinger

[2009] FMCA 986

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PROVIDENT CAPITAL LTD v HANS PETER MOLLINGER [2009] FMCA 986

PRACTICE & PROCEDURE – BANKRUPTCY – Application by applicant creditor to substitute PCL Holdings Ltd (ACN 101 975 633) as applicant creditor – application not opposed – application granted to substitute applicant creditor.

Bankruptcy Act 1966 (Cth), ss.30, 49
Federal Magistrates Court Act 1999 (Cth), s.15
Federal Magistrates Court Rules 2001 (Cth), Pt 11, r.11.01, r.11.03, r.11.04

McNamara v Langford (1931) 45 CLR 267

Applicant: PROVIDENT CAPITAL LTD

Respondent: HANS PETER MOLLINGER

File Number: SYG 1491 of 2008

Judgment of: Lloyd-Jones FM

Hearing date: 2 October 2009

Delivered at: Sydney

Delivered on: 2 October 2009

REPRESENTATION

Counsel for the Applicant: Ms B Nolan

The Respondent: The respondent appeared in person.

ORDERS

1. The application filed by the applicant creditor on 16 September 2009, to substitute PCL Holdings Pty Ltd ACN 101 975 633 as applicant creditor, is allowed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1491 of 2008

PROVIDENT CAPITAL LTD

Applicant

And

HANS PETER MOLLINGER

Respondent

REASONS FOR JUDGMENT

1. This is an Application in a Case filed and presented on 16 September 2009 seeking the following orders:

   1. Pursuant to section 49 of the Bankruptcy Act 1966 (Cth) or in the alternative, pursuant to Part 11 of the Federal Magistrates Court Rules 2001, section 15 of the Federal Magistrates Court Act 1999 and section 30 of the Bankruptcy Act, PCL Holdings Pty Ltd ACN 101 975 633 be substituted as the applicant creditor in these proceedings.

   2. Each party bear their own costs of this motion.

   3. Any further or other orders that the Court deems fit.

2. The evidence supporting this application is contained in the affidavit of Michael Roger O’Sullivan sworn 16 September 2009 and filed on that date.  There is no objection to that affidavit and it was read into evidence.

3. Ms Nolan appearing for the applicant creditor stated that Provident Capital Ltd by deed of assignment assigned all its rights and interests entitling the security and the proceedings to a new entity which is PCL Holdings Pty Ltd, absolutely.  The affidavit of Michael Roger Sullivan at paragraph 3 states:

   3. By deed dated 29 July 2009 (“Deed of Assignment”) the Applicant [Provident Capital Ltd] assigned absolutely to PCL Holdings Pty Ltd ACN 101 975 633 (“PCLH”) all of its right, interests and title in:

   3.1 The loan agreement dated 28 March 2003 between the Applicant as lender and the respondent [Hans Peter Mollinger] and Jillian Mary Mollinger and Beau Joshua Mollinger jointly as borrower, as subsequently varied by deed on each 19 February 2004 and 26 May 2004;

   3.2 mortgage to the Applicant as mortgagee by the respondent and Jillian May Mollinger and Beau Joshua Mollinger jointly as mortgagor registered number 94938355 over the whole of the land in Certificate of Title folio identifier 3/SP76492 and known as unit 3,9 Seaview St, Ballina in the State of New South Wales; and

   3.3 These proceedings.

   5. On 29 July 2009 the Applicant mailed to the Respondent a notice of assignment pursuant to the Deed of Assignment, a true copy of which is Annexed hereto and marked as “MOS-3”. 

4. A further deed of assignment dated 7 September 2009 “Deed of Variation of Assignment” appears at Annexure “MOS-4”. 

5. The judgment debt is attached at Annexure “A”.  This judgment founds the Bankruptcy Notice in these proceedings.   

6. The applicant creditor is asking this Court under the provisions of s.49 of the Bankruptcy Act 1966 (Cth) (“the Act”) to substitute the creditor. Ms Nolan acknowledges that there is authority which states that the debt ought to have existed at the time which the Bankruptcy Notice was filed: McNamara v Langford (1931) 45 CLR 267 which suggests that s.49 may not necessarily be available. However, the Federal Magistrates Court Rules 2001 (Cth) pursuant to Pt 11, r.11.01 gives the Court the power to add any necessary party. Rule 11.03 indicates that a person may apply to be added as a party and r.11.04 states that a party may be removed. It is submitted that this application would require all three rules to be applied.

7. Similarly the Act gives the Court power to make whatever orders were necessary in order to determine the application. The applicant creditor formerly on the record is no longer the person to whom the debtor is indebted. Section 15 of the Federal Magistrates Court Act 1999 (Cth) is almost analogous to the Bankruptcy Act provisions.

8. Mr Hans Peter Mollinger indicated to the Court that he neither consented to nor opposed the applicant’s application to the Court.

Conclusion

1. In the absence of any objection I am satisfied that the substitution of the new entity PCL Holdings Pty Ltd (ACN 101 975 633) take the place of Provident Capital Ltd.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: 

8 October 2009