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Aulsebrook v Ant Projects Pty Ltd

Aulsebrook v Ant Projects Pty Ltd

Case [2020] FCCA 2211 13 August 2020

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FEDERAL CIRCUIT COURT OF AUSTRALIA

AULSEBROOK v ANT PROJECTS PTY LTD

[2020] FCCA 2211

Catchwords:
BANKRUPTCY – Review of decision of registrar to order sequestration order – matters requiring proof pursuant to s52(1) of the Bankruptcy Act not in issue and proved in any event – bankrupt not asserting solvency – onus on bankrupt to establish other sufficient cause why a sequestration order should not be made – bankrupt’s appeal to the Queensland Court of Appeal not pursued by trustee – whether the appeal if reinstated would have sufficient prospects of success such that a sequestration order should not be made – appeal prospects poor – sequestration order made.

Legislation:

Bankruptcy Act 1966 (Cth), s.52(1).

Cases cited:

Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460

DCT v Cumins (2008) 101 ALD 78

Kyriackou v Shield Merchantile Pty Ltd (No.2) [2004] FCA 1338

Totev v Sfar [2008] FCAFC 35

Toyota Finance Australia Limited v Singh, in the matter of Singh [2020] FCA 949

Applicant:

RICHARD WILLIAM AULSEBROOK

Respondent:

ANT PROJECTS PTY LTD

File Number:

MLG 115 of 2020

Judgment of:

Judge Burchardt

Hearing date:

8 July 2020

Date of Last Submission:

8 July 2020

Delivered at:

Dandenong

Delivered on:

13 August 2020

REPRESENTATION

Counsel for the Applicant:

Self-represented

Solicitors for the Applicant:

Not applicable

Counsel for the Respondent:

Mr Schultz

Solicitors for the Respondent:

McLachlan Thorpe Partners

ORDERS

The interim application and the application for review both filed 12 June 2020 be dismissed.
A sequestration order be made against the estate of Richard William Aulsebrook.
The applicant’s creditor’s costs be paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).

THE COURT NOTES THAT:

A. The date of the act of bankruptcy is 19 December 2019.

B. A consent to act as trustee signed by Mark Julian Robinson and David Solomons has been filed under s 156A of the Bankruptcy Act 1966 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLG 115 of 2020

RICHARD WILLIAM AULSEBROOK

Applicant

And

ANT PROJECTS PTY LTD

Respondent

REASONS FOR JUDGMENT

Introductory

This is an application for review of a decision of Registrar Ryan made on 28 May 2020 whereby the registrar relevantly made a sequestration order against the estate of Mr Aulsebrook. It is, of course, a hearing de novo (see Totev v Sfar [2008] FCAFC 35 at [9]-[15]). The Court is required to be satisfied of the matters contained in section 52(1) of the Bankruptcy Act 1966 (Cth), but it should be noted that, not only were these matters proved by appropriate affidavit material in any event, but Mr Aulsebrook, who was self-represented, expressly indicated that he had no challenge to make under this heading.
In summary, Mr Aulsebrook’s position is that an appeal he had commenced in the Supreme Court of Queensland challenging judgment given against him in the District Court of Queensland by Andrews DCJ on 27 May 2019 was likely to succeed so that there would be no underlying debt owing by…

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 Aulsebrook v Ant Projects Pty Ltd

Details

AGLC: Aulsebrook v Ant Projects Pty Ltd [2020] FCCA 2211
Case: [2020] FCCA 2211
Decision Date: 13 August 2020

CaseChat Overview and Summary

The applicant, Aulsebrook, sought to review a decision by the Registrar to make a sequestration order against the respondent, Ant Projects Pty Ltd. The dispute concerned whether the Registrar's decision was correct, particularly in light of the respondent's financial position and the prospects of a previously abandoned appeal. The matter was heard by Judge Burchardt in the Supreme Court of Queensland.

The primary legal issue before the Court was whether there was "sufficient cause" why a sequestration order should not be made against Ant Projects Pty Ltd, as contemplated by section 52(1) of the *Bankruptcy Act 1966* (Cth). This involved considering whether a previously discontinued appeal by the respondent to the Queensland Court of Appeal, if reinstated, would have had sufficient prospects of success to warrant setting aside the sequestration order.

Judge Burchardt reasoned that the requirements of section 52(1) of the *Bankruptcy Act* regarding the proof of debt and act of bankruptcy were not in dispute and had been adequately proven. The respondent did not assert solvency. Therefore, the onus fell upon the respondent to demonstrate sufficient cause to prevent the sequestration order. The Court found that the prospects of success for the respondent's abandoned appeal were poor, and there was no other basis for establishing sufficient cause. Consequently, the sequestration order was confirmed.

Orders