Anne v Ask Funding Ltd - [2013] FCCA 1271

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANNE v ASK FUNDING LTD

[2013] FCCA 1271

Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice – bankruptcy notice reliance upon judgment – where bankruptcy notice followed judgment – where judgment and bankruptcy notice named the debtor using a name she had changed prior to the proceedings leading to the judgment – whether bankruptcy notice defective because debtor’s current name not used to describe her in the notice – whether service irregular – whether execution of judgment stayed because bankruptcy notice and judgment in old name – whether execution of judgment stayed because of order of Supreme Court establishing a trust for the proceeds of sale of certain property – bankruptcy notice valid – application dismissed.

Legislation:

Bankruptcy Act 1966, ss.41(3)(b), 306(1)

Births, Deaths and Marriages Registration Act 1995 (NSW)
Uniform Civil Procedure Rules 1999 (QLD), r.761

Conway v Mogensen (1998) 156 ALR 254
Kyriackou v Shield Mercantile Pty Ltd (2004) 138 FCR 324
Matheson v Scottish Pacific Business Finance Pty Ltd [2005] FCA 670
McBride v Ask Funding Limited [2013] QCA 130

Re Brownbank and Miller; Ex parte Loniplus Pty Ltd (1985) 12 FCR 254
Re Hansen; Ex parte Hansen (1985) 4 FCR 590
Re McSwiney; Ex parte Davies (unreported, FCA, Beaumont J, P 1611 of 1986, 24 November 1986)
Swart v Carr (No.2) [2008] FMCA 1204
Wiltshire-Smith v Mellor Olsson (1995) 57 FCR 572
Wren v Mahony (1972) 126 CLR 212
Yang v Mead [2009] FCA 1202

Applicant:

PATRICIA ANNE

Respondent:

ASK FUNDING LTD

File Number:

BRG 451 of 2013

Judgment of:

Judge Jarrett

Hearing date:

29 July 2013

Date of Last Submission:

29 July 2013

Delivered at:

Brisbane

Delivered on:

6 September 2013

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondent:

Ms Williamson

Solicitors for the Respondent:

Dibbs Barker

ORDERS

The application filed 3 June 2013 be dismissed;
The applicant pay the respondent’s costs of and incidental to the application, including reserved costs, as agreed or taxed pursuant to the Federal Circuit Court (Bankruptcy) Rules 2006.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 451 of 2013

PATRICIA ANNE

Applicant

And

ASK FUNDING LTD

Respondent

REASONS FOR JUDGMENT

On 7 November, 2012 the District Court of Queensland gave judgment against Patricia Ann McBride at the suit of Ask Funding Ltd for $150,552.49 plus costs of the action on the indemnity basis.
On 10 May, 2013 Ask Funding procured the issue of a bankruptcy notice against Patricia Ann McBride relying upon the judgment.
On 13 May, 2013 the bankruptcy notice was served upon the applicant in these proceedings, Patricia Anne. There is no dispute that until 23 July, 2009 the applicant was known as Patricia Anne McBride but on that day she changed her name to Patricia Anne. Her change of name was recorded by the Registry of Births, Deaths and Marriages in New South Wales pursuant to the Births, Deaths and Marriages Registration Act1995 (NSW).
On 3 June, 2013 Ms Anne commenced this application wherein she…

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 [2013] FCCA 1271
Case: [2013] FCCA 1271
Decision Date: 6 September 2013

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 the respondent.

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 principles that a party seeking to set aside a default judgment on the grounds of irregular service need only demonstrate that service was not effected, and that the onus is on the party seeking to uphold the judgment to prove proper service.

The court ordered that the default judgment be set aside, with costs reserved.

Orders