FEDERAL COURT OF AUSTRALIA
Balwyn Nominees Pty Ltd v Culleton [2016] FCA 1578
File number: WAD 492 of 2016 Judge: BARKER J Date of judgment: 23 December 2016 Catchwords: BANKRUPTCY – creditor’s petition – where creditor’s petition based on failure to comply with bankruptcy notice requiring payment of judgment debt – whether court of bankruptcy should “go behind” judgment on which judgment debt based – whether respondent debtor had counter-claim equal to or exceeding amount of judgment debt for purposes of s 40(1)(g) of Bankruptcy Act 1966 (Cth) – whether creditor’s petition abuse of process – whether sequestration order would deprive respondent debtor of property otherwise than on “just terms” contrary to s 51(xxxi) of Constitution – whether Court satisfied that respondent debtor able to pay his debts for purposes of s 52(2) of Bankruptcy Act 1966 (Cth) – whether respondent debtor entitled to account under s 30(2) of Bankruptcy Act 1966 (Cth)
PRACTICE AND PROCEDURE – service – whether bankruptcy notice and creditor’s petition served – where notice of appearance entered by respondent debtor
PRACTICE AND PROCEDURE – application for trial by jury – whether Court should exercise discretion to direct trial of question of fact before a jury under s 30(3) of Bankruptcy Act 1966 (Cth) – whether right to trial by jury under s 116 of Constitution – whether right to trial by jury under s 80 of Constitution – application dismissed
PRACTICE AND PROCEDURE – application for adjournment of hearing – whether adjournment should be granted for respondent debtor to obtain legal representation – whether adjournment should be granted for service of notices under s 78B of Judiciary Act 1903 (Cth) – where adjournment previously granted – where respondent debtor previously expressed desire to appear as self-represented party/advocate – application dismissed
Legislation: Constitution ss 51(xxxi), 80, 116
Bankruptcy Act 1966 (Cth) ss 30(2), 30(3), 31(1), 40(1), 40(1)(g), 41, 43, 43(1), 43(2), 44, 44(1), 44(1)(a), 44(2), 44(3), 47, 47(1), 52, 52(1), 52(1)(b), 52(1A), 52(2), 52(3), 60(3), 74(5), 86(1), 149(1), 153A(1), 153B, 156A, 178
Federal Court of Australia Act 1976 (Cth) ss 37M, 40
Judiciary Act 1903 (Cth) s 78B
Federal Court (Bankruptcy) Rules 2016 (Cth) RR 1.04, 4.04, 4.04(1)(a), 4.04(1)(b). 4.05, 4.06, Pt 4
Federal Court Rules 2011 (Cth) RR 10.11, 10.12
Cases cited: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd and Others (1999) 95 FCR 299; [1999] FCA 1151
Bayne v Bailieu (1908) 6 CLR 328; [1908] HCA 39
Culleton [2016] FCA 1193
Culleton v Dakin Farms Pty Ltd [2015] WASCA 183
Culleton v Dakin Farms Pty Ltd [2016] WASCA 152
Culleton v Macquarie Leasing Pty Ltd (No 2) [2015] FCA 1478
Dakin Farms Pty Ltd v Elite Grains Pty Ltd [No 2] [2013] WADC 160
Glew & Anor v Shire of Greenough [2006] WASCA 260
Glew v The Governor of Western Australia (2009) 222 FLR 416; [2009] WASC 14
Harding v Deputy Commissioner of Taxation (2008) 172 FCR 206; [2008] FCA 1403
Re Finlayson; Ex parte Finlayson
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- AGLC
- Balwyn Nominees Pty Ltd v Culleton [2016] FCA 1578
- Case
- [2016] FCA 1578
- Decision Date
CaseChat Overview and Summary
The court concluded that the creditor's petition and relevant documents were properly served on Culleton. Regarding the District Court judgment, the court found that it was not flawed and that the creditor's petition was not an abuse of process. The court rejected Culleton's constitutional arguments, finding them unconvincing and without foundation. The court also dismissed applications for a trial by jury and an adjournment to obtain legal representation. Ultimately, the court ordered the sequestration of Culleton's estate, stayed all proceedings under the sequestration order for 21 days, and directed that the creditor's costs be paid from Culleton's estate.
Orders
Orders of the court
1. The estate of Rodney Norman Culleton be sequestrated under the Bankruptcy Act 1966 (Cth). The Court notes that the date of the act of bankruptcy was 30 August 2016.
2. There be a stay of all proceedings under the sequestration order for a period of 21 days.
3. The petitioning creditor’s costs (including any reserved costs) be taxed and paid out of the estate of Rodney Norman Culleton in accordance with the statute.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Ratio Decidendi
Legal Principle Established
I reject the submission.WILL THE RESPONDENT DEBTOR BE DEPRIVED OTHERWISE THAN ON “JUST TERMS” OF SOME PROPERTY, CONTRARY TO THE CONSTITUTION, SHOULD A SEQUESTRATION ORDER BE MADE AGAINST HIM ON THE CURRENT APPLICATION? Again this is one of the issues that is thrown up by the respondent debtor’s submissions, and, in particular, in his Submission filed 16 December 2016. It is a particularly difficult argument to follow. He refers to s 51(xxxi) of the Constitution, which he rightly observes guarantees “just terms” in the acquisition of any property from an individual by authority of the Commonwealth Parliament. His argument, as he expresses it, at the top of p 4 of his Submission, is that the orders of the trial judge in the primary District Court proceeding constitutes an “Arbitrary Order” against him, “taking property from me” and thus the Constitutional just terms provision has been violated. The simple answer to the proposition is that the District Court of Western Australia, exercising judicial power in relation to a contractual dispute between the relevant parties to the litigation, did not deprive Mr and Mrs Culleton of any property he or they were possessed of. A judgment was entered against them requiring them to pay damages. Even if broader principles of law derived from the Constitution mean that the District Court of Western Australia, at material times, was exercising judicial power under the Constitution, the judicial orders made by the District Court do not in any way involve the confiscation of property to which s 51(xxxi) of the Constitution refers. There is also merit in the submission of counsel for the petitioning creditor that the Commonwealth Parliament has the express legislative power to make a law in relation to bankruptcy, pursuant to s 51(xxxi) of the Constitution, and so it follows that a sequestration order made on the strength of the District Court orders also cannot be considered to involve some arbitrary confiscation, not on just terms, of the respondent debtor’s property. As I said in the course of argument at the hearing, the constitutional arguments made on behalf of the respondent debtor are not convincing. In fact, they are not even arguable. They are made by persons, no doubt doing the best that they can, without any apparent formal instruction as to the tenets of Australian constitutional law. They fail conceptually and logically at almost every turn. It follows that the “just terms” and related arguments are without any foundation and should be disregarded. As to other “constitutional” or broader philosophical submissions and observations made by the respondent debtor in his affidavit of 12 December 2016 or in the respondent debtor’s Submission filed 16 December 2016, none have any substance so far as the questions raised in this proceeding are concerned, and I have no regard to them.DOES THE ISSUING OF THE S 78B NOTICE AFFECT THE EXERCISE OF THE JURISDICTION OF THE COURT? I have noted above that on 18 November 2016 the respondent debtor filed a notice under s 78B of the Judiciary Act at the same time as he filed his appearance and grounds of opposition. The terms of the s 78B notice are set out above. There was no evidence before the Court that at the time of the hearing the notice had been served on any of the Attorneys.