A Melbourne estate planning firm is seeking legal advice to avoid debtors’ courts, after receiving a letter from the court service about the company’s application for a court order.
The letter was sent to the lawyer and the company in March this year, according to a letter to the court filed by the company on Wednesday.
In the letter, the company says it needs the court order “to ensure it is compliant with the requirements of the Australian Capital Territory (ACT) Corporations Act”.
The court letter, dated April 21, states the application was “to determine whether the company is eligible to apply for a writ of habeas corpus”.
A letter from an official from the ACT Court Service to an estate planning solicitor.
According to the letter to High Court, the application is “for a writ to be issued against the company for an assessment under section 42 of the ACT Corporations (Court) Act 2010” as it “is likely to have contravened section 44 of that Act”.
“The matter has been referred to the High Court and the matter is now in the hands of the Court,” the letter says.
“It is advised that the application will not be granted in this instance.
If the application goes ahead, you will not need to pay a fee.”
In a statement, the court said the application “may be considered by the High Courts”, and it was not “imperative” for the application to go ahead.
“[The court] has not made any determination as to whether the application would be successful,” the statement read.
“The matter is being considered in accordance with the provisions of the Corporations Acts.
The application may be considered and the Court has no power to grant an order against the person in the application.”
The court noted the letter did not include a date of receipt, and referred the case to the Victorian Civil and Administrative Tribunal.
A spokeswoman for the Victorian Court Service said they were not aware of the letter and could not comment on it.
As the letter was addressed to the estate planning partner, the spokeswoman said she was unable to provide further information.
Sandringham’s estate planning counsel, Alan Bowerman, has been representing the company since January.
Mr Bowermann told The Daily Telegraph he had not received the letter yet, and was waiting for it to be received by the court.
“It would be inappropriate for me to comment on the matter until I had received it,” he said.
He said the company had no previous history of debtors’, courts or fines, and he was not aware there was any appeal to the Supreme Court.
But he said the letter should have been addressed to him.
“I can’t comment on an internal matter that has not been communicated to me,” he told The Australian.
Under the Australian Corporations Amendment Act 1992, a company must apply for court approval to obtain a writ, and if the court decides in favour of the company, the matter must be heard by the Supreme Judicial Court.
“The Commonwealth is required to provide a written statement to the Registrar of Companies stating that the company has not failed to comply with the terms of the Commonwealth Act and the regulations relating to the Commonwealth,” the company said in a statement.
Despite the letter from Mr Bowermans lawyer, the WA Court of Appeal, which has jurisdiction over the court’s decisions, has refused to grant the writ, saying there was no evidence the application had been properly made.
An employee at the court, who asked not to be named, told The Telegraph the court had refused to consider the application because it was based on “fictitious information”.
“I was not able to obtain the letter myself,” the employee said.
“I have been given a copy of the application, but I was not given the opportunity to read it.”
A company should be able to show the applicant has complied with the relevant Commonwealth law and regulations.
“Mr Fenton said the case could have “grave implications” for other people who might have been involved in a similar situation.
We are not just talking about debtors, we are talking about people who may have gone through an estate that they should have not gone through,” he added.
Ms Saldana said her client had no reason to fear debtors would seek to seek the writ to stop her from filing for divorce, or seek to overturn the divorce.
“He’s very worried about the possibility that this could have a negative impact on him, his children and his relationships with his partner,” she said.
“We need to have a law that is clear and straightforward that says this is an order for a judge to issue a writ.”