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ANZ Banking Group Ltd v Carpenter

ANZ Banking Group Ltd v Carpenter

Case [2007] FMCA 1589 19 September 2007

Stay of Proceedings

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Insolvency Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

ANZ BANKING GROUP LTD v CARPENTER

[2007] FMCA 1589

BANKRUPTCY – Creditor’s petition – application for an adjournment to allow for an appeal pending in the New South Wales Court of Appeal – adjournment granted.

Fair Trading Act 1987 (NSW), s.42
Trade Practices Act 1974 (Cth), s.52

Adamopoulos v Olympic Airways SA (1990) 95 ALR 525
Ahern v Deputy Commissioner of Taxation (1987) 76 ALR 137
Carpenter v Pioneer Park Pty Ltd (2001) 51 ACSR 299
Lewin & Glasson, Re; Ex parte Milner (1986) 67 ALR 591
McCollum, Re; Ex parte The Bankrupt (1987) 71 ALR 626
NRMA Insurance Ltd v Vale [2001] FCA 511
Pioneer Park Pty Limited (in Liquidation) v Australia and New Zealand Banking Corporation Limited [2006] NSWSC 883
Re Flatau; Ex parte Scotch Whisky Distillers Ltd (1888) 22 QBD 83
Westpac Banking Corp v Carver (2003) 126 FCR 113

Applicant:

AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED

Respondent:

CLIFFORD JOHN CARPENTER

File number:

SYG 492 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

18 June 2007

Delivered at:

Sydney

Delivered on:

19 September 2007

REPRESENTATION

Counsel for the Applicant:

Mr J E Thomson

Solicitors for the Applicant:

Minter Ellison Lawyers

Counsel for the Respondent:

Mr Garnsy SC with Mr Lambert

Solicitors for the Respondent:

Somerset Ryckmans

Solicitors for Supporting Creditor:

The Argyle Partnership

ORDERS

The application for adjournment of the creditor’s petition until the appeal to the New South Wales Court of Appeal is resolved is granted.
Costs be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 492 of 2007

ANZ BANKING GROUP LIMITED

Applicant

And

CLIFFORD JOHN CARPENTER

Respondent

REASONS FOR JUDGMENT

Introduction

By creditor’s petition filed, the Australia & New Zealand Banking Group Limited, ACN 005 357 522 (applicant creditor), seeks a sequestration order against the estate of Clifford John Carpenter (respondent debtor). The petition is based upon a debt of $647,413.18 being an unsatisfied judgment of the Supreme Court of New South Wales in proceedings number 50163 of 2004.
The respondent debtor failed to comply on or before 13 February 2007 with the requirements of bankruptcy notice NN4839/06 served on him on 19 December 2006. The time for compliance with the notice was extended by an order of the Federal Magistrates Court on 11 January 2007, 23 January 2007 and 30 January 2007. Alternatively, he failed to satisfy the Court that he had a counter-claim, set off or cross-demand equal to or more than the sum claimed in the bankruptcy notice.
On 22 May 2007, the respondent debtor’s solicitors filed a notice stating grounds of opposition to the petition on the following grounds:
The judgment which underlies the creditor’s petition was reached as a result of reversible error and is currently under appeal.
The matter currently before this Court is whether the creditor’s petition should be adjourned to allow for an appeal which is pending in the New South Wales Court of Appeal to proceed.

Background

The affidavit filed by Mr Carpenter on 22 May 2007…

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 ANZ Banking Group Ltd v Carpenter

Details

AGLC: ANZ Banking Group Ltd v Carpenter [2007] FMCA 1589
Case: [2007] FMCA 1589
Decision Date: 19 September 2007

CaseChat Overview and Summary

ANZ Banking Group Ltd filed a creditor’s petition against a debtor, Carpenter, seeking to enforce a judgment debt. The debtor contested the petition on the grounds that there were pending appeals against the original judgment, and the debtor argued that these appeals had a substantial prospect of success. The matter was heard in the Supreme Court of New South Wales, where the primary issue was whether the creditor’s petition should proceed while the appeals were ongoing. The court had to determine if the appeals had sufficient merit to warrant a stay of the creditor’s petition.

The court examined the merits of the appeals and the potential impact on the outcome of the creditor’s petition. It considered the likelihood of the appeals succeeding and whether the enforcement of the debt would be prejudiced if the creditor’s petition was allowed to proceed. The court determined that there was a substantial likelihood that the appeals would be successful, which could affect the enforcement of the judgment debt. Consequently, the court held that the creditor’s petition should be stayed until the appeals were resolved.

Accordingly, the court granted an adjournment of the creditor’s petition until the resolution of the appeals in the New South Wales Court of Appeal. The court also noted that the costs of the application would be reserved for a later determination. The debtor’s application to stay the enforcement of the creditor’s petition was thus successful, pending the outcome of the appeals.

Orders

Orders of the court

The application for adjournment of the creditor’s petition until the appeal to the New South Wales Court of Appeal is resolved is granted.

Costs be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

ANZ Banking Group Ltd v Carpenter [2007] FMCA 1589

Most Recent Citation

Carpenter v Pioneer Park Pty Ltd [2008] NSWSC 551

Cases citing this decision · 1 of 1 shown

Carpenter v Pioneer Park Pty Ltd
[2008] NSWSC 551

…Pty Ltd (1991) 6 ACSR 250 Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58 Australia and New Zealand Banking Group Ltd v Carpenter [2007] FMCA 1589 Australian Securities Commission v Ampolex Ltd (1995) 38 NSWLR 504 Cape Breton Company v Fenn (1881) 17 ChD 198 Carpenter v Pioneer Park Pty Ltd [200…

View all 1 citing cases →

Cases cited in this decision · 14 of 14 shown

Pioneer Park Pty Limited (in liquidation), Clifford John Carpenter, Merlo Australia Pty Limited v Australia and New Zealand Banking Group Limited
[2006] NSWSC 883 Para 3

…proceedings and dismissed the plaintiff’s claims: Pioneer Park Pty Limited (in Liquidation) v Australia and New Zealand Banking Corporation Limited [2006] NSWSC 883. The specific judgment obtained by the ANZ Bank with respect to proceedings 50163 of 2004 related to an alleged debt owed by Mr Carpenter to ANZ Bank,…
Carpenter v Pioneer Park Pty Ltd (in liq)
[2004] NSWSC 1007 Para 1

…aims an indemnity but does not challenge Mr Carpenter’s right to bring the appeal in the name of Pioneer Park, pursuant to an order of Barrett J in Carpenter v Pioneer Park Pty Ltd (2001) 51 ACSR 299 at [39]: …Mr Carpenter obviously intends that he should finance the litigation in which he wishes the company to engage. With the company’s…
Westpac Banking Corporation v Carver
[2003] FCA 221 Para 5

…the principle is stated in terms which acknowledge the existence of exceptions; it operates “in general”. See also Westpac Banking Corp v Carver (2003) 126 FCR 113. Mr Thomson, for the applicant, notes in his written submissions that a Court would not grant such an adjournment if the adjournment itself is likely to…
NRMA Insurance Ltd v Vale
[2001] FCA 511 Para 4

…Justice Emmett also states in NRMA Insurance Ltd v Vale [2001] FCA 511 at [18]: 18. Accordingly, I do not consider there is any ground for refusing a sequestration order based on the currency of the appeal. Nor do I consider that the currency of the appeal is a ground for adjourning the hearing of the petition, p…
Bryant v Commonwealth Bank of Australia
[1996] HCA 3 Para 3

…petition: Re Flatau; Ex parte Scotch Whisky Distillers Ltd (1888) 22 QBD 83. This approach finds support in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at [17] per Kirby J: …it will be proper for the Federal Court to postpone making a sequestration order, founded ultimately upon a judgment in another c…
Adamopoulos v Olympic Airways SA
[1990] FCA 280 Para 5

…In Adamopoulos v Olympic Airways SA (1990) 95 ALR 525 at 532, Burchett and Gummow JJ stated: It will, of course, be observed that the principle is stated in terms which acknowledge the existence of exceptions; it operates “in general”. See also Westpac Banking Corp v Carver (2003) 126 FCR 113. Mr Thomson, for the applicant, notes in his…
Adamopoulos v Olympic Airways SA
[1989] NSWCA 1 Para 5

…In Adamopoulos v Olympic Airways SA (1990) 95 ALR 525 at 532, Burchett and Gummow JJ stated: It will, of course, be observed that the principle is stated in terms which acknowledge the existence of exceptions; it operates “in general”. See also Westpac Banking Corp v Carver (2003) 126 FCR 113. Mr Thomson, for the ap…
Re Verma; Ex Parte Deputy Commissioner of Taxation
[1984] FCA 374 Para 2

…le grounds: Re Rhodes; ex parte Heyworth (1884) 14 QBD 49; Bayne v. Baillieu (1907) 5 CLR 64 and Re Verma: Ex parte Deputy Commissioner of Taxation (1985) 4 FCR 181. 40. These cases rest on the broad principle that before a person can be made bankrupt the court must be satisfied that the debt on which the petitioni…
Pinkerton, Daniel James v B.G. Textiles Pty Ltd (in liq)
[1984] FCA 340 Para 2

…e and arguable grounds. Ahern v DCT (QLD) 76 ALR 137, followed. (iii) A discretion operates whether to apply the general rule. Re Verna; Ex parte DCT (1984) 4 FCR 181; Re Lewin and Glasson; Ex parte Milner (1986) 67 ALR 591, considered. (iv) In this case, the court’s discretion miscarried. There appeared to be a ge…
Dobbs v National Bank of Australasia Ltd
[1935] HCA 49 Para 6

…obbs certificate is not determinative because of the difference in wording in relation to the relevant clause. Dobbs v The National Bank of Australia (1935) 53 CLR 643 concerned a clause in a guarantee given to a bank provided that a certificate signed by the manager of the office at which the principal debtor’s acc…
Bayne v Baillieu
[1907] HCA 39 Para 2

…tcy proceedings provided that the appeal is based on genuine and arguable grounds: Re Rhodes; ex parte Heyworth (1884) 14 QBD 49; Bayne v. Baillieu (1907) 5 CLR 64 and Re Verma: Ex parte Deputy Commissioner of Taxation (1985) 4 FCR 181. 40. These cases rest on the broad principle that before a person can be made b…
[1987] FCA 504
[1987] FCA 504 Para 2

…ul, would remove the basis on which the Court would otherwise order sequestration of a debtor’s estate, see Ahern v Deputy Commissioner of Taxation (1987) 76 ALR 137 at [39]-[40] per Davies, Lockhart and Neaves JJ: 39. It is also well established that in general a court exercising jurisdiction in bankruptcy should n…
(1888) 22 QBD 83
(1888) 22 QBD 83 Para 3

…pending is not sufficient ground for staying or adjourning proceedings upon a creditor’s petition: Re Flatau; Ex parte Scotch Whisky Distillers Ltd (1888) 22 QBD 83. This approach finds support in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at [17] per Kirby J: …it will be proper for the Federal Cour…
(1884) 14 QBD 49
(1884) 14 QBD 49 Para 2

…on as the foundation of the bankruptcy proceedings provided that the appeal is based on genuine and arguable grounds: Re Rhodes; ex parte Heyworth (1884) 14 QBD 49; Bayne v. Baillieu (1907) 5 CLR 64 and Re Verma: Ex parte Deputy Commissioner of Taxation (1985) 4 FCR 181. 40. These cases rest on the broad principle…

Legislation cited in this decision · 3

Fair Trading Act 1987 (WA)
42 2 mentions (from Para 5)
Trade Practices Act 1974 (Cth)
52 2 mentions (from Para 5)
Corporations Act 2001 (Cth)
1 mention (from Para 1)