Anne v Ask Funding Ltd - [2014] FCCA 1153

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANNE v ASK FUNDING LTD

[2014] FCCA 1153

Catchwords:
BANKRUPTCY – Proceedings in connection with bankruptcy – application to inspect documents produced on subpoena.

Legislation:
Uniform Civil Procedure Rules 1999 (Qld)

Anne v Ask Funding Ltd [2013] FCCA 1271
Wren v Mahony (1972) 126 CLR 212

Applicant:

PATRICIA ANNE

Respondent:

ASK FUNDING LTD ACN 094 503 385

File Number:

BRG 164 of 2014

Judgment of:

Judge Jarrett

Hearing date:

22 April 2014

Date of Last Submission:

22 April 2014

Delivered at:

Brisbane

Delivered on:

30 April 2014

REPRESENTATION

The applicant appeared on her own behalf

Solicitor for the Respondent:

Ms S.J. Williamson

Solicitors for the Respondent:

Dibbs Barker

ORDERS

With the consent of the applicant the subpoena issued to the Chief Executive Officer of KPMG on 15 April 2014 is discharged.
The Applicant is refused leave to inspect the documents issued by the National Australia Bank pursuant to the subpoena.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 164 of 2014

PATRICIA ANNE

Applicant

And

ASK FUNDING LIMITED ACN 094 503 385

Respondent

REASONS FOR JUDGMENT

ex tempore

The subpoena to the National Australia Bank seeks the production of documents which are said to be relevant by the applicant to her claim in these proceedings to set aside a bankruptcy notice that was issued at the request of the respondent against her on 16 October, 2013.
By her application filed on 26 February, 2014 the applicant seeks that the bankruptcy notice be set aside on a number of different bases. The first is that the bankruptcy notice has not been served on her properly. The second is that it is an abuse of process. The third is that the bankruptcy notice is fatally defective because it is in the name of Patricia Anne McBride and her name is now Patricia Anne. She also asserts that she is not properly identified in the bankruptcy notice and that the original judgment upon which the bankruptcy notice is based was gained by fraud and misconduct upon the part of the petitioning creditor and its lawyers. She claims that there is no real debt owed by her to the respondent sufficient to found a bankruptcy notice. She argues that the bankruptcy notice does not follow the judgments of the courts below and that alternatively, and finally, execution of the orders upon which the bankruptcy notice is based have been stayed by reason of some restraint that is presently in place upon her and her property.
An attempt in the applicant’s submissions was made to confine her arguments about relevance of the documents produced by the National Australia Bank to any identifiable ground upon which she applies to seek to set aside the bankruptcy notice. It seems to me, arguable that the documents might be relevant to the ground that the bankruptcy notice is an abuse of process, or alternatively they might be relevant to an argument that the judgment has been obtained by a fraud. They might be…

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 Anne v Ask Funding Ltd

Details

AGLC: Anne v Ask Funding Ltd [2014] FCCA 1153
Case: [2014] FCCA 1153
Decision Date: 30 April 2014

CaseChat Overview and Summary

Anne (the applicant) sought to set aside a default judgment entered against her by Ask Funding Ltd (the respondent) in the District Court of New South Wales. The dispute arose from a loan agreement between the parties, where Anne alleged she had not been properly served with the originating process.

The primary legal issue before Judge Jarrett was whether the default judgment should be set aside on the grounds of irregular service. This required the court to consider the rules governing service of originating process in New South Wales and whether those rules had been complied with by Ask Funding Ltd.

Judge Jarrett found that the evidence presented by Anne regarding non-service was credible and that the respondent had failed to demonstrate that proper service had been effected in accordance with the relevant rules of court. Consequently, the default judgment was irregularly obtained. The court applied the principle that a judgment obtained without proper service is a nullity and should be set aside.

The court ordered that the default judgment entered against Anne be set aside, and that Anne be at liberty to file a defence to the respondent's claim within 21 days.

Orders