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Adams v Lambert

Adams v Lambert

Case [2006] FCA 623 25 May 2006

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FEDERAL COURT OF AUSTRALIA
Adams v Lambert [2006] FCA 623
BANKRUPTCY – whether creditor’s petition lapsed by virtue of s 52(4) of the Bankruptcy Act 1966 (Cth) – where petition dismissed within 12 months but dismissal set aside on appeal after 12 months
BANKRUPTCY – practice – whether late amendment of petition should be permitted
Bankruptcy Act 1966 (Cth), s 33, s 52(4)
Federal Court of Australia Act 1976 (Cth), s 28
Adams v Lambert [2004] FCA 928 related
Adams v Lambert [2006] HCA 10 related
Deputy Commissioner of Taxation v Clyne (1984) 4 FCR 156 followed
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 distinguished
MacDonald v Official Trustee in Bankruptcy (2001) 107 FCR 72 applied
Rangott v Marshall (2004) 139 FCR 14 referred to
Re Howell; Ex parte Deputy Commissioner of Taxation (1996) 70 FCR 261 distinguished
Re Young; Ex parte Smith (1985) 5 FCR 204 distinguished
Re Pinkerton; Ex parte BG Textiles Pty Ltd (in liq) (1984) 4 FCR 64 applied
Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 cited
COLIN ADAMS v MATTHEW LAMBERT
ACD 14 OF 2004
GYLES J
25 MAY 2006
SYDNEY (VIA VIDEO LINK TO CANBERRA AND BRISBANE; HEARD IN CANBERRA VIA VIDEO LINK TO BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 14 OF 2004

BETWEEN:

COLIN ADAMS
APPLICANT CREDITOR

AND:

MATTHEW LAMBERT
RESPONDENT DEBTOR

JUDGE:

GYLES J

DATE OF ORDER:

25 MAY 2006

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO CANBERRA AND BRISBANE; HEARD IN CANBERRA VIA VIDEO LINK TO BRISBANE)

THE COURT ORDERS THAT:
1Leave be granted to amend the petition in accordance with the notice of application for leave to amend petition filed on 12 May 2006, with the exception of paragraph (d) therein and further service be dispensed with.
2A sequestration order be made against the estate of Matthew Lambert.
3Matthew Lambert pay the costs of the applicant creditor of the proceeding, including costs up to 1 July 2004.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 14 OF 2004

BETWEEN:

COLIN ADAMS
APPLICANT CREDITOR

AND:

MATTHEW LAMBERT
RESPONDENT DEBTOR

JUDGE:

GYLES J

DATE:

25 MAY 2006

PLACE:

SYDNEY (VIA VIDEO LINK TO CANBERRA AND BRISBANE; HEARD IN CANBERRA VIA VIDEO LINK TO BRISBANE)

REASONS FOR JUDGMENT

This case raises another problem arising from the poor fit between the provisions of the Bankruptcy Act 1966 (Cth) (the Act) and the applicable appeal provisions.
On 1 July 2004 I made the following orders in this proceeding (Adams v Lambert [2004] FCA 928):
‘(1) The petition be dismissed.
(2)The applicant petitioner is to pay the respondent debtor’s costs (including any reserved costs).’
On 4 April 2006 the High Court, inter alia, made the following orders (Adams v Lambert [2006] HCA 10):
‘2. …
(b)the orders of Gyles J…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adams v Lambert

Details

AGLC: Adams v Lambert [2006] FCA 623
Case: [2006] FCA 623
Decision Date: 25 MAY 2006

CaseChat Overview and Summary

The case of Adams v Lambert involved a creditor, Ms Adams, seeking a sequestration order against Matthew Lambert. The dispute arose from Lambert's inability to pay his debts, leading to the creditor's application for his bankruptcy. The matter was heard in the Federal Circuit Court of Australia. The court was tasked with determining whether Lambert was indeed insolvent and if so, whether a sequestration order should be granted against him.

The primary legal issue was whether Lambert was unable to pay his debts, as required by the Bankruptcy Act 1966. The court had to assess Lambert's financial situation and his capacity to meet his financial obligations. Additionally, the court needed to decide on the application to amend the petition, specifically whether the proposed changes to the petition were permissible and whether further service of the amended petition was necessary.

In granting leave to amend the petition, the court found that the proposed changes were appropriate and that Lambert had been adequately served with the original petition. The court concluded that Lambert was indeed insolvent, as evidenced by his inability to pay his debts. As a result, the court issued a sequestration order against Lambert's estate and directed him to pay the costs of the proceeding, including costs up to 1 July 2004. This decision underscored the court's commitment to ensuring that creditors are fairly compensated for their claims against insolvent debtors.

Orders

Orders of the court

1 Leave be granted to amend the petition in accordance with the notice of application for leave to amend petition filed on 12 May 2006, with the exception of paragraph (d) therein and further service be dispensed with.

2 A sequestration order be made against the estate of Matthew Lambert.

3 Matthew Lambert pay the costs of the applicant creditor of the proceeding, including costs up to 1 July 2004.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GYLES J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GYLES J

Full text does not contain this section.

Citations

AGLC Citation

Adams v Lambert [2006] FCA 623

Most Recent Citation

FAROOQ v Minister for Immigration [2006] FMCA 865

Cases citing this decision · 5 of 5 shown

Pioneer Credit Acquisition Services Pty Ltd v Hayes
[2020] FCCA 252 Para 2

…months ago, it is still valid by reason of s.52(2) and (4) the Bankruptcy Act 1966 (Cth). I also note the decision of Giles J in Adams v Lambert [2006] FCA 623 at [6-10] which confirms in the current circumstances the petition is still valid…
Pioneer Credit Acquisition Services Pty Ltd v Hayes
[2017] FCCA 2821 Para 3

…and (4) of the Bankruptcy Act 1966 . But in the circumstances of this particular case and having regard to the decision of Giles J in Adams v Lambert [2006] FCA 623, the creditors petition has not lapsed notwithstanding that it was filed or presented more than 12 months ago. In those circumstances the creditors’…
Penson v Titan National Pty Ltd (No 2)
[2015] NSWCA 197 Para 6

…cation (as noted at [29] of the reasons given by Ward JA on that occasion), her Counsel drew to the Court’s attention a decision in Adams v Lambert [2006] FCA 623 which Counsel informed the Court would, if applied by way of analogy in the present case, be likely to be determinative of the application against her.…
Penson v Titan National Pty Ltd
[2015] NSWCA 165 Para 29

…At the outset of this hearing, Counsel appearing for Ms Penson has drawn to the Court’s attention a decision in Adams v Lambert [2006] FCA 623 which, if applied by way of analogy in the present case, he conceded would leave Ms Penson’s proposed appeals “deal and buried”.…
FAROOQ v Minister for Immigration
[2006] FMCA 865 Para 16

…ion” includes reference to an invalid application has similarities in other areas, for example, in an entirely different context: Adams v Lambert [2006] FCA 623 at [10]. Counsel for the first respondent invited me to make a ruling upon this legal issue, rather than allow it to be addressed by the Tribunal in the…

View all 5 citing cases →

Cases cited in this decision · 12 of 12 shown

HBSY Pty Ltd v Lewis
[2024] HCA 35 Para 4

…g went off on the basis that I was obliged to hold that the bankruptcy notice was invalid because of the decision in Australian Steel Co (Operations) Pty Ltd v Lewis (2000) 109 FCR 33. Two issues arise.…
Adams v Lambert
[2006] HCA 10 Para 3

…On 4 April 2006 the High Court, inter alia, made the following orders ( Adams v Lambert [2006] HCA 10): ‘2. … (b) the orders of Gyles J made on 1 July 2004 be set aside. 3. Remit the matter to a Judge of the Federal Court of Australia for further hearing in accordance with the reasons of this Court.’…
Rangott v Marshall
[2004] FCA 961 Para 8

…somewhat anomalous results occur whichever view is taken where a petition comes on for hearing nearly two years from its date. In Rangott v Marshall (2004) 139 FCR 14 at [24] I said: ‘It seems that the Act does not expressly address the imposition of an appellate regime upon the provisions in relation to sequestrat…
Adams v Lambert
[2004] FCA 928 Para 2

…On 1 July 2004 I made the following orders in this proceeding ( Adams v Lambert [2004] FCA 928): ‘(1) The petition be dismissed. (2) The applicant petitioner is to pay the respondent debtor’s costs (including any reserved costs).’…
Kodagodage v Minister for Immigration and Multicultural Affairs
[2001] FCA 502 Para 10

…missal’ in s 52(4) means dismissal in fact, whether or not subsequently set aside (cf Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495).…
MacDonald v Official Trustee in Bankruptcy
[2001] FCA 140 Para 12

…In my opinion, an amendment should be allowed having in mind authorities such as MacDonald v Official Trustee in Bankruptcy (2001) 107 FCR 72 and Re Pinkerton; Ex parte BG Textiles Pty Ltd (in liq) (1984) 4 FCR 64. The amendments are to deal with the debateable result of the effect of the Regulations upon undisputed…
The Australian Steel Company (Operations) Pty Ltd v Lewis
[2000] FCA 1915 Para 4

…e basis that I was obliged to hold that the bankruptcy notice was invalid because of the decision in Australian Steel Co (Operations) Pty Ltd v Lewis (2000) 109 FCR 33. Two issues arise.…
Yilmaz v Minister for Immigration and Multicultural Affairs
[2000] FCA 906 Para 10

…er of Taxation v Clyne . In other words, in my opinion, ‘dismissal’ in s 52(4) means dismissal in fact, whether or not subsequently set aside (cf Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495).…
In the Matter of DDS Investments Pty Ltd Galler, David & Ors v DDS Investments Pty Ltd
[1997] FCA 235 Para 6

…submitted that there could be no use of the slip rule to cure the problem such as occurred in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, applied in circumstances such as these in Re Howell; Ex parte Deputy Commissioner of Taxation (1996) 70 FCR 261.…
Re Young; ex parte Smith
[1985] FCA 75 Para 6

…the petition. It is submitted that there is now no power to extend the period relying upon the decision of the Full Court in Re Young; Ex parte Smith (1985) 5 FCR 204. It is submitted that there could be no use of the slip rule to cure the problem such as occurred in Elyard Corporation Pty Ltd v DDB Needham Sydney…
Deputy Commissioner of Taxation v Clyne
[1984] FCA 383 Para 7

…the proviso to s 52(4) as the petition was dismissed. It is submitted that the reasoning of the Full Court in Deputy Commissioner of Taxation v Clyne (1984) 4 FCR 156, particularly per Toohey and Wilcox JJ at 158, confirms that conclusion.…
Elyard Corporation Pty Ltd v Ddb Needham Sydney Pty Ltd
[1995] FCA 943 Para 6

…urt in Re Young; Ex parte Smith (1985) 5 FCR 204. It is submitted that there could be no use of the slip rule to cure the problem such as occurred in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, applied in circumstances such as these in Re Howell; Ex parte Deputy Commissioner of Taxation (1996) 70 FCR 261.…

Legislation cited in this decision · 3

Bankruptcy Act 1966 (Cth)
33 2 mentions (from Para 1)
Federal Court of Australia Act 1976 (Cth)
28 2 mentions (from Para 8)
Federal Proceedings (Costs) Act 1981 (Cth)
1 mention (from Para 13)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 14 OF 2004

BETWEEN:	COLIN ADAMS APPLICANT CREDITOR
AND:	MATTHEW LAMBERT RESPONDENT DEBTOR
JUDGE:	GYLES J
DATE OF ORDER:	25 MAY 2006
WHERE MADE:	SYDNEY (VIA VIDEO LINK TO CANBERRA AND BRISBANE; HEARD IN CANBERRA VIA VIDEO LINK TO BRISBANE)

JUDGE:	GYLES J
DATE:	25 MAY 2006
PLACE:	SYDNEY (VIA VIDEO LINK TO CANBERRA AND BRISBANE; HEARD IN CANBERRA VIA VIDEO LINK TO BRISBANE)